Embed Size (px)
Citation preview
INVITATION TO TENDER NO BUDG/11/PO/03 FOR THE SUPPLY OF TECHNICAL ASSISTANCE SERVICES IN THE
FIELD OF AUDITS AND CONTROLS
EUROPEAN COMMISSION Budget Director-General
Dear Sir/Madam, Subject: - Invitation to tender No BUDG/11/PO/03 for the supply of technical assistance services in
the field of audits and controls - Publicity measures: Publication in the Official Journal of the European Union, S series
OJ S 141-233378 of 26/07/2011
1. The European Commission is planning to award the contract referred to above. 2. If you are interested in this contract, you should submit a tender in triplicate in one of the official
languages of the European Union. 3. Where submission is by letter, tenderers may choose:
a) either by post or by courier not later than 06/09/2011, in which case the evidence of the date of
dispatch shall be constituted by the postmark or the date of the deposit slip, to the following address:
European Commission Directorate-General BUDGET, Head of Unit BUDG/D03 Office: BREY 12/54 B-1049 Brussels b) or to deliver tenders by hand to the following address: European Commission Directorate-General BUDGET, For the attention of the Head of Unit BUDG/D03, office BREY 12/54, Avenue du Bourget 1 B-1140 Brussels (Evere) Belgium no later than 16.00 on 06/09/2011. In this case a receipt must be obtained as proof of submission, signed and dated by the official in the Commission’s central mail department who took delivery. This service is open from 08.00 to 17.00 from Mondays to Thursdays, and from 08.00 to 16.00 on Fridays. It is closed on Saturdays, Sundays and Commission holidays.
4. Tenders must be placed inside two sealed envelopes. The inner envelope, addressed to the department indicated in the invitation to tender, should be marked as follows: "Invitation to tender —not to be opened by the internal mail department". If you use self-adhesive envelopes, they must be sealed with adhesive tape and you must sign across this tape.
The inner envelope in turn must contain two sealed envelopes, one containing the technical bid and the other the financial bid. Each of these envelopes must clearly indicate the content ("Technical" and "Financial").
3
5. The specification for this contract and the draft contract are enclosed with this invitation to tender. The specification indicates all the documents that must be produced in order to submit a tender, including supporting evidence of economic, financial, technical and professional capacity.
6. Tenders must be: - signed by the tenderer or his duly authorised representative; - perfectly legible so that there can be no doubt as to words and figures;
7. Period of validity of the tender, during which the tenderer may not modify the terms of his tender in any respect: 9 months from the final date for submission.
8. Submission of a tender implies acceptance of all the terms and conditions specified in this invitation
to tender, in the specification and in the draft contract and, where appropriate, waiver of the tenderer's own terms of business. It is binding on the tenderer to whom the contract is awarded for the duration of the contract.
9. Throughout the procedure, contact between the contracting authority and tenderers will be authorised
in exceptional circumstances only and under the following conditions only:
- Before the final date for submission of tenders: * In reply to a request from a tenderer, the contracting authority may provide additional
information, which will be strictly limited to explaining the nature of the contract. Any requests for additional information must be made in writing only to the functional mailbox [email protected]. Requests for additional information received less than five working days before the closing date for submission of tenders will not be processed.
* The Commission may, on its own initiative, inform interested parties of any error, inaccuracy, omission or other clerical error in the text of the call for tenders.
* Where appropriate, additional rules and the above information will be published on
http://ec.europa.eu/budget/contracts_grants/call_tenders/call_tenders_DGbudg/call_tenders_en.cfm
- After the opening of tenders * If clarification is requested or if obvious clerical errors in the tender need to be corrected, the
contracting authority may contact the tenderer provided the terms of the tender are not modified as a result.
10. This invitation to tender is in no way binding on the Commission. The Commission’s contractual
obligation commences only upon signature of the contract with the successful tenderer.
11. Until such time as the contract is signed, the contracting authority may either abandon or cancel the procurement procedure, without the tenderers being entitled to claim any compensation. This decision must be substantiated and the candidates or tenderers notified.
12. Once the Commission has opened the tender, the document shall become the property of the
Commission and it shall be treated confidentially. 13. You will be informed whether or not your tender has been accepted.
4
14. If your offer includes subcontracting, it is recommended that contractual arrangements with
subcontractors include mediation as a method of dispute resolution. 15. If processing your reply to the invitation to tender will involve the recording and processing of
personal data (such as your name, address and CV), such data will be processed pursuant to Regulation (EC) No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. Unless indicated otherwise, your replies to the questions and any personal data requested are required to evaluate your tender in accordance with the specifications of the invitation to tender and will be processed solely for that purpose by BUDG/D3. Details concerning the processing of your personal data are available on the privacy statement at: http://ec.europa.eu/dataprotectionofficer/privacystatement_publicprocurement_en.pdf .
16. Your personal data may be registered by the Commission Accounting Officer either in the Early Warning System (EWS) only or in both the EWS and the Central Exclusion Database, should you be in one of the situations mentioned in:
- Commission Decision 2008/969 of 16 December 2008 on the Early Warning System (for more information see the Privacy Statement on http://ec.europa.eu/budget/info_contract/legal_entities_en.htm), or
- Commission Regulation No 2008/1302 of 17 December 2008 on the Central Exclusion Database (for more information see the Privacy Statement on http://ec.europa.eu/budget/library/contracts_grants/info_contracts/privacy_statement_en.pdf
Date and signature,
Hervé JOUANJEAN
5
TABLE OF CONTENTS
TABLE OF CONTENTS.......................................................................................... 5
SPECIFICATION..................................................................................................... 6
1. Background......................................................................................................... 6
2. Nature of the contract ........................................................................................ 7
3. Subject of the contract ....................................................................................... 8
4. Duration and place of performance of the framework contracts.................. 15
5. Provisions on progress monitoring ................................................................ 15
6. Provisions relating to tenders ......................................................................... 17
7. Prices and estimated volume of the framework contract.............................. 18
8. Consortia or groups of service providers and subcontracting .................... 19
9. Procedure for evaluating tenderers and tenders ........................................... 19
ANNEXES Model Framework contract Request for services and declaration of absence of conflict of interest
6
TENDER SPECIFICATION 1 BACKGROUND
The European Union has a general budget of almost EUR 140 billion. In addition to an administrative budget of some EUR 7 billion, this covers the following main areas of activity: sustainable growth, preservation and management of natural resources, citizenship, freedom, security and justice, and the EU as a world partner.
The EU institutions1, the Directorates-General (DGs) and services of the Commission, the executive agencies2 and Community agencies3, and the other Community bodies referred to in the Financial Regulation4 (hereinafter "user departments") implement the budget using the management methods set out for each policy in the corresponding basic instrument.
1.1 The controls and audits performed by the user departments
In the context of their control structure, the user departments mainly carry out audits and controls of financed operations5. These controls are in addition to ex ante controls, in other words controls before the approval of the transactions. The audits and controls are extremely varied as they can be conducted at any time during the performance of the programme or project and can concern the beneficiaries, projects, transactions or even the systems. The audits to be carried out can be financial audits of agreed procedures and can include various types of audit (systems, performance, detection, etc.).
1 The Council, the European Economic and Social Committee, the European External Action Service and the European Data Protection Supervisor.
2 Agencies responsible for carrying out programmes referred to in Articles 54(2)(a) and 55 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 248 of 16.9.2002) and established pursuant to Council Regulation (EC) No 58/2003 of 19 December 2003 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ L 11 of 16.1.2003). In this specification, the term "executive agencies" refers to the following: the Education, Audiovisual and Culture Executive Agency (EACEA), the Executive Agency for Competitiveness and Innovation (EACI), the European Research Council Executive Agency (ERC), the Executive Agency for Health and Consumers (EAHC), the Research Executive Agency (REA), the Trans-European Transport Network Executive Agency (TEN-T EA), the other executive agencies whose creation is currently under discussion in the negotiations on the 7th Research Framework Programme and any other executive agency that might come into operation before the end of the framework contract drawn up.
3 Bodies referred to in Articles 54(2)(b) and 185 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 248 of 16.9.2002) which are established by a separate Community act. In this specification, the term "Community agencies" refers to the following: the Euratom Supply Agency, the European Centre for the Development of Vocational Training, (CEDEFOP), the European Foundation for the improvement of living and working conditions (EUROFOUND ), the European Environment Agency (EEA), the European Training Foundation (ETF), the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), the European Medicines Agency, the Office for Harmonisation in the Internal Market (OHIM), the European Agency for Safety and Health at Work (EU-OSHA), the Community Plant Variety Office (CPVO), the Translation Centre for bodies of the European Union, the European Police Office (EUROPOL), the European Agency for Reconstruction, the European Agency for Fundamental Rights (FRA), the Institute for Security Studies (ISS), the European Satellite Centre, the European Body for the Enhancement of Judicial Cooperation (EUROJUST), the European Food Safety Authority (EFSA), the European Maritime Safety Agency (EMSA), the European Aviation Safety Agency (EASA), the European Network and Information Security Agency (ENISA), the European Centre for Disease Prevention and Control (ECDC), the European Railway Agency (ERA), the European GNSS Supervisory Authority (GNSS), the European Defence Agency (EDA), the European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX), the Community Fisheries Control Agency (CFCA), the European Police College (CEPOL), the European Chemicals Agency (ECHA), the European Agency for the Evaluation of Medicinal Products (EMEA), the European Institute for Gender Equality (EIGE), the European Institute of Technology (EIT), the Agency for the Cooperation of Energy Regulators (ACER), the Agency for the operational management of SIS II, VIS and EURODAC, the European electronic communications market authority (EECMA), and any other body that might come into operation before the end of the framework contract drawn up.
4 The other Community Bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 248 of 16.9.2002) include the Joint Undertakings (JU) and the EIT, the European Institute of Technology. The Joint Undertakings are as follows: the Fuel Cells and Hydrogen Joint Undertaking (FCH JU), the Innovative Medicines Initiative Joint Undertaking (IMI JU), Clean Sky, SESAR, ARTEMIS, F4E (Fusion for Energy), ENIAC (European Nanoelectronics Initiative Advisory Council), JU-GALILEO and any other Community bodies that might be established before the end of the framework contract drawn up.
5 Audits can sometimes take place prior to payment, for instance systems audits.
7
The choice of the audit and control strategy, which is the exclusive responsibility of the user departments, is largely dependent on the control environment (management method, nature of expenditure, risks inherent to regulation, type of beneficiary, population distribution, amounts, type of controls carried out by the competent authorising officer, etc.).
Whether the aid is managed directly or indirectly influences the manner in which assurance will be acquired during the audits and controls.
Some audits and controls are outsourced. This invitation to tender is therefore aimed at concluding a framework contract that will enable the user departments to draw on such expertise.
1.2 Controls and audits performed by the Commission's partners
When the budget is implemented via partners who are responsible for the daily management and control of activities (mainly the Member States, international organisations and national agencies), the rules on the controls that have to be carried out on these activities are laid down in legislation at an appropriate level. The Commission remains responsible, however, for implementing the budget even if the activity is managed in the main by third parties and should therefore ensure that its partners have put in place a system for control and supervision. These partners can never be user departments of this framework contract, and they can be audited and controlled.
With the gradual extension of the Commission's tasks, the enlargement of the Union and the growing budgets to be administered, the Commission has had to increase the number of bodies contributing to the governance of the Union.
1.3 The Community bodies
There is a number of reasons for the creation of these Community bodies, e.g.:
• to enable the Commission to focus on core tasks by delegating certain operational or budget implementation tasks to decentralised bodies;
• to support the decision-making process in areas where a high level of technical or specialist expertise is required;
• to take on responsibilities normally incumbent on Member States but for which coordination at European level is desirable;
• to carry out programmes efficiently;
• to ensure greater visibility for the Union outside Brussels through bodies located in different areas of the Union.
The Community bodies thus set up, which can be traditional agencies, executive agencies or joint undertakings, will be able to use this framework contract. They must have expressed interest before the invitation to tender so that they are explicitly mentioned in the framework contract.
2 NATURE OF THE CONTRACT
The aim of this invitation to tender is to provide user departments with multiple framework contracts with reopening of competition for technical assistance services in the field of audits and controls. The model framework contract applicable in this instance is reproduced in Annex I.
Tenderers' attention is drawn to the fact that the framework contract does not constitute placement of an order but is merely designed to set the legal, financial, technical and administrative terms
8
governing relations between the contracting parties during the contract term. Orders may be placed solely on the basis of specific contracts in accordance with the provisions of Annex III to the framework contract.
Signature of the framework contract does not commit the Commission to placing orders and does not give the contractor any exclusive rights regarding the services covered by the framework contract. In any case, the Commission reserves the right, at any time during the framework contract, to cease placing orders, without the contractor having the right to any compensation.
A multiple framework contract is a procedure whereby identical contracts are concluded separately between the Commission and a number of contractors. A maximum of eight tenderers will be asked to sign a framework contract following the award of the contracts based on the criteria and procedure set out in points 9.3, 9.4 and 9.5.
When a user department wishes to procure services under the framework contracts, it will act by reopening competition in accordance with the provisions set out in Article I.4 of the model framework contract in the Annex. If a contractor identifies at the stage of the request for services a conflict of interests, he must inform the user department and not submit an offer for this specific contract.
Any collusion between contractors will be considered as grave professional misconduct (Art 93.1(c) of the Financial Regulation6 (FR)). Without prejudice to Art II.15, administrative and/or financial penalties may be applied pursuant Art 96 of the FR.
This framework contract has an iinntteerriinnssttiittuuttiioonnaall ddiimmeennssiioonn as the user departments can be Commission departments or executive agencies, statutory agencies, joint undertakings or even institutions; with the exception of Commission departments, the user departments must however be mentioned in the framework contract.
3 SUBJECT OF THE CONTRACT
The activities concerned are described in such a way that they can be used as the specification during the reopening of competition. Grant agreements are sometimes explicitly referred to as they account for a large proportion of the audits carried out, but contracts and other financing means can also be audited on the basis of this framework contract.
This framework contract cannot be used to outsource internal audits carried out within the user departments.
3.1 The following activities are envisaged:
3.1.1 Financial audit:
The objective of an audit of financial statements is to enable the auditor to express an opinion whether the financial statements are prepared, in all material respects, in accordance with an applicable financial reporting framework; the level of confidence required is usually 95%.
Tasks to be performed will be the following: - to carry out an examination of the reliability of the financial statements
6 Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general
budget of the European Communities (OJ L 248 of 16.9.2002),
9
- to assess whether procedures used concerning the accounting system are reasonable and in accordance with the regulations and rules
- to confirm that accounting records are properly kept
The audit will be carried out in line with International Standard on Auditing 2007.
3.1.2 Agreed-upon-procedures (AUP):
This expenditure verification is an engagement to perform certain agreed procedures with regard to the Financial Report for the grant agreement. Verification means that the auditor examines the factual information in the beneficiary's financial report and compares it with the terms and conditions of the grant agreement. As this mandate does not include assurance, the auditor does not provide any audit opinion or assurance. The user department assesses for itself the factual findings reported by the auditor and draws its own conclusions from these findings. The auditors are not permitted to reduce the checks below those specified by the Commission: full coverage if less than 20 items, otherwise a sample of minimum 20, or 20% of the items, whichever is the greater; this requirement applies to the categories of costs which are : personnel, subcontracting, other direct costs. The audit will be carried out in line with ISRS 4400 Engagements to perform Agreed-Upon-Procedures regarding financial information8
The list of specific procedures to be followed is given below (for guidance):
3.1.2.1 General procedures
3.1.2.1.1 Financial report relating to the grant agreement
The auditor checks that the financial report complies with the following conditions:
the financial report must comply with the model grant agreement; the financial report must cover the entire measure, regardless of
whether it is wholly financed or co-financed by the contracting authority;
the financial report must be drawn up in the language of the grant agreement;
evidence of transfers of ownership of equipment, vehicles and materials must be annexed to the final report.
3.1.2.1.2 Rules on accounting and bookkeeping
The auditor must check that the beneficiary has complied with the following rules on accounting and bookkeeping set out in the general conditions of the grant agreement:
the accounts kept by the beneficiary for the implementation of the measure must be accurate and up-to-date;
the beneficiary must have a double-entry bookkeeping system;
7 http://www.ibr-ire.be/fra/download.aspx?type=3&id=2886&file=8122
8 ftp://ftp.cordis.europa.eu/pub/fp7/docs/isrs44000_en.pdf
10
the accounts and expenditure relating to the measure must be easily identifiable and verifiable;
the accounts must provide precise details of the interest accrued on funds paid by the contracting authority.
3.1.2.1.3 Comparison between the financial report and the beneficiary's
accounting system and accounts
The auditor compares the information in the financial report with that in the beneficiary’s accounting system and records (e.g. trial balance, general ledger accounts, sub-ledgers, etc.).
3.1.2.1.4 Exchange rate
The auditor verifies that expenditure incurred in a currency other than the euro has been converted at the exchange rate which is made up of the average of the rates published in InforEuro for the months covered by the financial report, unless otherwise provided in the special conditions of the grant agreement.
3.1.2.2 Procedures to verify compliance of expenditure with the budget and analytical review
3.1.2.2.1 Budget for the grant agreement
The auditor carries out an analytical review of the expenditure headings in the financial report.
The auditor verifies that the budget in the financial report corresponds with the budget of the grant agreement (authenticity and authorisation of the initial budget) and that the expenditure incurred was indicated in the budget of the grant agreement.
3.1.2.2.2 Amendment of the budget for the grant agreement
The auditor checks whether there have been amendments to the budget of the grant agreement. Where this is the case, the auditor checks that the beneficiary has:
asked for an amendment to the budget and obtained a supplementary agreement to the grant agreement, where this was necessary;
informed the contracting authority of the amendment when this was limited and when a supplementary agreement was not necessary.
3.1.2.3 Procedures to verify selected expenditure
3.1.2.3.1 Eligibility of costs
The auditor verifies the eligibility criteria set out below for each expenditure item selected.
(1) Costs actually incurred
The auditor checks that the expenditure for a selected item was actually incurred by and concerns the beneficiary. For this purpose the auditor
11
examines supporting documents (e.g. invoices, contracts) and proof of payment. The auditor also examines proof of work done, goods received or services rendered and verifies the existence of assets where applicable.
(2) Cut-off - Implementation period
The auditor checks that the expenditure for a selected item was incurred during the implementation period of the action.
(3) Budget
The auditor checks that the expenditure for a selected item was indicated in the budget for that measure.
(4) Expenditure necessary under the grant agreement for the measure
The auditor checks whether the expenditure relating to a selected item was, in all likelihood, necessary for implementing the measure.
(5) Account statements
The auditor verifies that expenditure for a selected item is recorded in the beneficiary's accounting system in accordance with the accounting standards applicable in the country where the beneficiary is established and the beneficiary's usual accounting practices.
(6) Justified expenditure
The auditor checks that the expenditure relating to a selected item is substantiated by evidence and in particular by the supporting documents specified in the general conditions in the grant agreement.
(7) Determination of value
The auditor checks that the monetary value of a selected expenditure item is in line with the supporting documents (e.g. invoices, salary statements) and that the right exchange rates are used where applicable.
(8) Classification
The auditor examines the nature of the expenditure for a selected item and checks that the expenditure item has been classified under the correct (sub)heading of the financial report.
(9) Compliance with procurement rules
The auditor examines which procurement rules apply to a given expenditure (sub)heading, category or item. The auditor checks whether the expenditure was incurred in accordance with these rules by examining the supporting documents for the procurement and purchase process. Where the auditor finds cases of non-compliance with procurement rules, he/she reports the nature of the cases and their financial impact in terms of ineligible expenditure.
3.1.2.3.2 Eligibility of direct costs
If the expenditure for a selected item is recorded under one of the direct cost headings of the financial report, the auditor checks that this type of expenditure is covered by the direct costs as defined in the grant agreement by examining the nature of the expenditure items concerned.
12
3.1.2.3.3 Provision for contingencies
The auditor checks that the provision for contingencies does not exceed the envisaged percentage of direct eligible costs of the measure and that the beneficiary has obtained prior written authorisation from the contracting authority for the use of this contingency reserve.
3.1.2.3.4 Administrative costs
The auditor checks that the indirect costs representing overheads do not exceed the envisaged percentage of total direct eligible costs for the measure.
3.1.2.3.5 Contributions in kind
The auditor checks that the costs in the financial report do not include contributions in kind. Contributions in kind do not constitute eligible costs.
3.1.2.3.6 Non-eligible costs
The auditor checks that the expenditure for a selected item does not concern a non-eligible cost as described in the general conditions. The auditor checks whether expenditure includes certain taxes, in particular VAT. If so, the auditor checks that the beneficiary (or, where applicable, the partners) cannot reclaim these taxes and that the applicable regulations, rules and practices in the country concerned allow these taxes to be included in expenditure.
3.1.2.3.7 Revenue
The auditor examines whether revenue which should be attributed to the measure (including grants and funding received from other donors and other revenue generated by the beneficiary in the context of the measure, such as interest earned) have been allocated to the measure and declared in the financial report. To this end, the auditor seeks information from the beneficiary and examines the documents submitted by it. The auditor is not expected to examine all the revenue reported.
3.1.3 Systems audit:
The auditor produces an opinion based on reasonable assurance that legal requirements have been complied with and the audited system functions effectively.
The audit will be carried out in line with The International Standards of Supreme Audit Institutions, ISSAI 4000 - 42009.
9 http://www.issai.org/media(889,1033)/Compliance_Audit_Guidelines_E.pdf
13
3.1.4 Performance audit
The auditor examines to what extent the audited entity has, in performing its tasks, used the funds received in accordance with the principles of economy, efficiency and effectiveness.
The audit will be carried out in line with The International Standards of Supreme Audit Institutions, ISSAI 3000 – 310010
3.1.5 Ad hoc audit
This category of audits covers the audits that must meet very specific needs not listed above. It allows therefore some flexibility in the framework contract.
For example, it could cover the following activities:
Detection audit: the purpose of this audit is to confirm or reject suspected fraud. Ex post document inspections (after payment) of financial transactions (interim
or final payment) with a view to checking the exact amounts already paid in order to establish an error rate at the level of the population;
3.2 Specifications common to all types of audit:
3.2.1 Standards and ethics
The auditor must perform his/her duties in accordance with:
internationally recognised standards; the Code of Ethics for Professional Accountants produced and published by the IFAC's
International Ethics Standards Board for Accountants (IESBA). This Code sets out fundamental ethical principles for auditors concerning integrity, objectivity, independence, professional competence, the duty to exercise due care and diligence, confidentiality, professional behaviour and technical standards. Although ISRS 4400 concerning engagements to perform agreed-upon procedures does not include independence as a criterion for missions based on agreed procedures, the contracting authority requires the auditor to be independent from the beneficiary and to comply with the independence conditions laid down in the IFAC's ethics code for professional accountants.
3.2.2 Subject of the audit
The audit could concern various aspects: the project, the beneficiary, the system, transaction, etc. depending on the needs of the contracting authority.
Please note that audits and controls may, at the Commission's request, be carried out on documents and/or on the spot, and may be carried out either before or after the final payment to the beneficiary by the department concerned. Audits and inspections of documents may be carried out in any place where the funds in question are managed or used.
The specific contract should specify what the audit will cover.
10 http://www.issai.org/media(890,1033)/Performance_Audit_Guidelines_E.pdf
14
3.2.3 Reference material
The user department must make available all the documents the auditor needs to carry out the audit: legal bases, agreements, contracts, financial documents, any reports, correspondence and e-mails, information connected with the entity being audited plus any other relevant document.
3.2.4 Evidence and documents
The auditor must record important questions in the working papers and collect evidence on which to base his opinion / findings and which provide evidence that the audit was carried out in accordance with the International Audit Standards.
The auditor must prepare working papers which are sufficiently complete and detailed to provide an overall understanding of the audit.
The auditor must record in his working papers all the information relating to the planning, nature and schedule of the audit and the scope of the audit procedures carried out, together with the result of these procedures and the conclusions which can be drawn from the evidence collected.
The auditor must adopt appropriate procedures guaranteeing the confidentiality and security of the working papers, and their storage, for a sufficient period of time, in line with Article II.17 of the framework contract in Annex. The user department can consult the working papers relating to a specific contract on request.
3.2.5 Drafting of the audit report
The report should describe the purpose, the procedures used and the factual findings in sufficient detail to enable the audited entity and the user department to understand the nature and extent of the procedures performed by the auditor and the factual findings by the auditor and any comments by the audited entity.
A draft version could be sent to the user department prior to the adversarial procedure with the audited entity.
A model report could be provided by the user department before signature of the specific contract.
3.2.6 Sound financial management approach to carrying out audits
Where possible, the contractor must use work already completed and made available by the user department in order to minimise the extent of the work to be carried out.
3.2.7 Approach taking account of the risk of fraud
When preparing the audit, the contractor must take account of the inherent risk of fraud (sectoral regulation, place where the beneficiary provides the service, nature of the beneficiary, etc.).
3.2.8 Quality control
The contractor must introduce internal procedures to ensure the quality of the deliverables (substance and form).
15
3.2.9 Continuity of service
The contractor must take the necessary measures to prevent discontinuity in the provision of the service. Continuity of service covers various aspects including the transfer of knowledge and documents when there is a change of expert, the availability and competence of the experts, the use of a back-up for key functions arising from the performance of the framework contract and specific contracts, storage and access to working documents regardless of the support, plus planning and monitoring of work.
3.2.10 Training of experts
The contractor must ensure that the experts used for each audit have received sufficient and adequate training.
The contracting authority thus requires that all the experts are familiar with all the documents which are provided in support of the specific contract and which are needed to carry out the audit. In the event of a delay arising from a shortcoming in the training, the damages set out in Article I(11) of the framework contract will be applied to the specific contract concerned.
3.2.11 Adversarial procedure with the audited entity
Before completing the audit report, an adversarial procedure will be formally carried out with the audited entity. The auditor will inform the audited entity of the potential implications if the user department pursues the conclusions in the audit report. Any discrepancies between the positions of the audited entity and the auditor must be clearly stated and can if necessary give rise to complementary work under the framework defined by the specific contract before the report is accepted by the user department.
4 DURATION AND PLACE OF PERFORMANCE OF THE FRAMEWORK CONTRACTS
The duration of the framework contract will be one year from the date of signature by the last of the contracting parties, with the possibility of up to three automatic extensions in accordance with the provisions set out in the model framework contract in Annex 1.
The Commission explicitly reserves the right not to renew the contract.
The services assigned to contractors under this procedure will, depending on their nature, be carried out on the contractor's premises and outside them, whether in Brussels / Luxembourg, Europe or elsewhere in the world.
5 PROVISIONS ON PROGRESS MONITORING
5.1 Reporting
5.1.1 Progress reports in the context of managing the framework contract
The following reports must be produced on all the work carried out by the contractor in performance of the framework contract. Contractors who have signed a specific contract must supply DG BUDG, at the address indicated in Art. I.7 of the framework contract in Annex, with one paper copy of these reports and one copy by electronic mail as follows:
Interim activity reports
16
Every three months, the contractor must submit an interim activity report.
This report must summarise the work performed and the results obtained for the previous three months. It will indicate in particular:
- the quantity and the price of the work performed during the reference period; - a summary table of the work containing the contract number attributed by
DG Budget, the user department and contact person, the date of signature of the contract, a summary of the deliverables, the number of audits carried out, the contractor's contact person, the maximum amount of the contract, the end date of the contract, a statement of payments, any comments to clarify a problem or the reasons for a delay;
- the work programme scheduled for the following period.
The reports must be sent to DG BUDG within 30 days of the end of the reference period.
Final activity report
One month before the end of the framework contract at the latest, the contractor must also submit a final activity report containing, in consolidated form, all the elements that must be included in each interim activity report.
The cost of producing the above reports must be borne exclusively by the contractor; DG BUDG will not participate in any way in the expenditure incurred, whether it relates to the drafting, production or distribution of the reports required.
5.1.2 Performance reports to be submitted to the user departments for each specific contract
Save where the specific contracts contain provisions to the contrary, the contractor must report on the services rendered in performing the specific contracts, and send user departments one paper copy of the report and one copy by electronic mail.
Interim reports for specific contracts
Interim reports will describe the work done and the results obtained for each period or phase which may be indicated in the specific contract. In particular, they should show the effects, if any, of the results obtained on the overall work covered by the specific contract and on the work programme scheduled for the following period.
The interim reports must be sent to the user department within 30 days of the end of the reference period specified in the specific contract.
Final report for specific contracts
The final report will describe all the work carried out and the results obtained under the specific contract. It will also contain a summary of the main results.
The procedures relating to the deadline for submitting the final report are laid down in each specific contract.
The final report will be deemed to have been accepted by the user department if, within 20 days of receiving the report, it has not expressly informed the contractor of any comments.
17
The cost of producing the above reports must be borne exclusively by the contractor; the user department will not participate in any way in the expenditure incurred, whether it relates to the drafting, production or distribution of the reports required.
5.1.3 Practical arrangements for the exchange of information
The arrangements described in points 5.1 and 5.2 of the specification are the minimum arrangements.
The tenderer shall propose, based on his own technical choices, how to ensure that information is communicated in real time, for instance via an information exchange platform; for example, the summary table of the work could be in a shared database.
5.2 Progress meetings
Progress meetings between the project leader and DG BUDG on the quality of the services provided under these contracts will be held on the Commission's premises in Brussels.
These meetings will be held quarterly and will monitor the progress of the work and compliance with the procedures and with the quality criteria.
These follow-up meetings will provide an opportunity to ensure that the following contractual commitments are being met:
- compliance with quality standards; - compliance with the procedures in this specification; - compliance with deadlines; - quality of contract administration; - quality of services provided; - quality of deliverables.
The cost of these meetings must be borne exclusively by the contractor; the Commission will not participate in any way in the expenditure incurred (transport, accommodation, etc.).
6 PROVISIONS RELATING TO TENDERS
Each tender must cover all the tasks listed in point 3. Bidding for only some of the tasks will lead to the exclusion of the tender.
Tenders must:
include all the information, documents and certificates required by this specification for:
verification of exclusions (cf. point 9.1); analysis of the capacity of tenderers based on the selection criteria (cf. point 9.2), and evaluation of tenders on the basis of the award criteria (cf. point 9.3);
include all information on prices, in accordance with point 7 below;
Variants are not permitted.
Expenses incurred in respect of the preparation and presentation of tenders are non-refundable.
All the documents submitted by tenderers become the property of the user departments and will remain confidential.
7 PRICES AND ESTIMATED VOLUME OF THE FRAMEWORK CONTRACT
7.1 Estimated volume of the framework contract
(1) Estimated at roughly 7600 audits.
(2) On the ground of experience in the management of previous framework contract and needs expressed by services, the breakdown of audits for the 4 years could be the following:
The Commission reserves the right to use the negotiated procedure for similar services; this will involve implementing the option set out at Article 126, point 1(f), of the rules for the implementation of the Financial Regulation11.
7.2 Prices
Prices must be quoted in EUR.
Prices must be net of taxes and duties, as the European Union is exempt from customs duties, indirect taxes and other dues under Articles 3 and 4 of the Protocol on the Privileges and Immunities of the European Union.
Tenderers must provide a maximum price for two standard types of audit as described in point 9.3.2 of the specification (Prices A and B).
The prices A and B must be fixed and represent the maximum price for each standard audit type. During the reopening of competition, each request for service will specify possible additional tasks and possible travel, which are not included in the maximum prices A and B.
11 COMMISSION REGULATION (EC, EURATOM) No 2342/2002 of 23 December 2002 laying down detailed rules for the
implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities.
18
19
8 CONSORTIA OR GROUPS OF SERVICE PROVIDERS AND SUBCONTRACTING
Joint bids or bids from consortia may be organised at the discretion of the tenderers. In such cases, one of the members must be designated as the lead tenderer.
NB: If a joint bid is submitted, the documents relating to the exclusion and selection criteria referred to in points 9.1 and 9.2 below must be provided by each of the economic operators participating in it.
Any tenderer intending to subcontract more than 5% of the total budget to a subcontractor must also submit all of these documents for the subcontractor concerned.
Tenderers submitting joint bids are asked to describe how their cooperation will be organised in order to achieve the desired results. This organisation has to cover the technical as well as the administrative/financial issues. The Commission must be provided with a single access point to all the participants, via a functional mailbox.
9 PROCEDURE FOR EVALUATING TENDERERS AND TENDERS
Tenderers and their tenders will be evaluated in stages as follows:
NB: Tenders must meet the requirements of each stage in order to be admitted to the next stage of the evaluation procedure.
9.1 Verification of grounds for exclusion
Tenderers are excluded from participation in this contract if:
- they are bankrupt or being wound up, are having their affairs administered by the courts, have entered into an arrangement with creditors, have suspended business activities, are the subject of proceedings concerning those matters, or are in any analogous situation arising from a similar procedure provided for in national legislation or regulations;
- they have been convicted of an offence concerning their professional conduct by a judgment which has the force of res judicata;
- they have been guilty of grave professional misconduct proven by any means which the contracting authority can justify;
- they have not fulfilled obligations relating to the payment of social security contributions or the payment of taxes in accordance with the legal provisions of the country in which they are established or with those of the country of the contracting authority or those of the country where the contract is to be performed;
- they have been the subject of a judgment which has the force of res judicata for fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the Union's financial interests;
- following another procurement procedure or grant award procedure financed by the Community budget, they have been declared to be in serious breach of contract for failure to comply with their contractual obligations.
20
Tenderers are also excluded from the award procedure if they:
- are subject to a conflict of interests;
- have been guilty of false declaration in providing the information required for participation in this procedure or have not provided this information;
NB: Tenderers must enclose a declaration to the effect that none of the above situations apply (Annex 3); supportive documents are to be provided at award stage only, not in the tender; they are listed in Annex 3 for information.
9.2 Selection of tenderers
The procedure for the selection of tenderers is intended to assess their economic, financial, technical and professional capacity. Selection criteria are applied at the level of the group of service providers.
To this end, all tenders submitted must include the following information:
1. full name of the organisation, legal status, VAT status, address, telephone, fax number and functional e-mail address, contact person, persons authorised to sign on behalf of the organisation.
i. The legal entity form should be provided by each entity taking part in the tender, including subcontractor with more than 5% of the total budget; the template is available at:
ii. http://ec.europa.eu/budget/contracts_grants/info_contracts/legal_entities/legal_entities_en.cfm
2. the financial identification form should be provided only by the lead tenderer but not by
other members of the group or subcontractors; the template is available at:
i. http://ec.europa.eu/budget/contracts_grants/info_contracts/financial_id/financial_id_en.cfm
3. proof of enrolment in the relevant professional or trade register, as prescribed in the country in which the tenderer is established;
4. a list of at least ten 10 audits, each one invoiced over €10 000, with at least one audit of each of the following types: financial audit, agreed procedure, systems audit, and performance audit. The provision of services directly relevant to the tender submitted must have been provided within the last three years. The list will include the amount, date and public or private recipients of the services:
5. if supplied to contracting authorities, evidence must be provided in the form of certificates issued or countersigned by the competent authority;
6. if supplied to private purchasers, provision of service is to be certified by the purchaser or, failing this, simply declared by the tenderer to have been provided;
7. the name, CV, evidence of educational and professional qualifications of one project manager fulfilling the following requirements:
i. Over 10 years' professional experience in auditing ii. Over 5 years' experience managing a department
iii. Status of certified auditor
21
iv. Fluency in French and English.
8. the name, CV, evidence of educational and professional qualifications of at least five team leaders fulfilling the following requirements:
i. Over 7 years' professional experience in auditing ii. Over 2 years' experience managing an audit team
iii. Status of certified auditor iv. Fluency in French or English.
9. indication of the proportion of the contract which the service provider may intend to subcontract;
10. a statement of overall turnover and turnover in respect of the services to which the contract relates for the previous three financial years. Yearly turnover must be over € 22 million.12
11. evidence of professional indemnity insurance;
12. Evidence of affiliation to a body such as the IFAC (International Federation of Accountants), the IIA (Institute of Internal Auditors) or equivalent. In the absence of such an affiliation, the tenderer undertakes to comply with international audit standards.
13. In conformity with Art. 136.3 and 137.4 of the Implementing rules, "An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It must in that case prove to the contracting authority that it will have at its disposal the resources necessary for performance of the contract, for example by producing an undertaking on the part of those entities to place those resources at its disposal".
9.3 Evaluation of tenders on the basis of the award criteria
9.3.1 Qualitative evaluation of the framework contract
Tenders will be evaluated on the basis of the following award criteria:
(1) The quality of the deliverables (20 points) in accordance with point 3.2.8 of the specification
(2) The experts must have received sufficient and adequate training (20 points) in accordance with point 3.2.10 of the specification;
(3) The prevention of discontinuity in the provision of services (10 points) in accordance with point 3.2.9 of the specification;
(4) The inclusion of the risk of fraud and the sound financial management approach (8 points) among the methods used to carry out the various audits, in accordance with points 3.2.6 et 3.2.7 of the specification;
(5) A low risk of a difference of opinion with the audited entity about the findings (12 points) in accordance with point 3.2.11 of the specification and splitted as following:
(6) The scheduled exchanges of information between the contractor and DG BUDGET on the one hand, and between the contractor and the user department on the other. The following will be taken into account in particular: the single contact
12 In case of a consortium, the requirement of a turnover over 22 million € applies at the level of the group not for each entity.
22
point, proactive management of deadlines for the end of the specific contract, information provided via a roadmap and possibly via an information exchange platform (10 points) in accordance with point 5 of the specification.
(7) The justification of the allocation of financial and human resources proposed by the tenderer in the financial offer such as organisation of the work, structure of the audit team, level of expertise, costs of the profiles used,… (20 points); splitted as follows:
a. Agreed-upon-procedure (10 points) b. Financial audit (10 points)
The figures in brackets indicate the maximum score that can be attributed to each individual criterion.
The maximum quality score is 100 points. Tenders which do not obtain at least 50% of the maximum score for each award criterion and subcriterion and at least 60% of the overall score for all the criteria will not be admitted to the next stage of the evaluation procedure.
9.3.2 Financial evaluation
The price used to determine the tender which offers the best value for money will be the total price of two standard types of audits; those 2 standard types (agreed-upon-procedure and financial audit) have been established in order to cover more than 95% of the audits which will be implemented.
An evaluation scenario is used for the price evaluation. To reflect the estimated proportions between agreed-upon-procedures and financial audits (see point 7.1 of the specifications), their respective weight will be 85% and 15%.
Tenderers' attention is drawn to the fact that the sole objective of the evaluation scenario is to provide a fair, non-discriminatory basis for comparing the financial bids.
Consequently, this evaluation scenario cannot under any circumstances be considered to constitute a commitment on the part of the Commission to conclude specific contracts for the related services and quantities, and cannot give rise to any right or legitimate expectation on the part of the contractor.
agreed-upon-procedure standard audit The assignment concerns an agreed-upon-procedure of 1.000.000€ grant for action funded to a single entity. The tasks which have to be implemented by the contractor are defined point 3.1.2. of the specifications. Documents provided to the contractor
• Final financial report, • Information concerning the beneficiary: name, address, phone, email, contact
person. • Legal basis for the grant • Grant application, • Overview of the budgetary situation: commitment, payments, recovery orders,… • Exchanges and useful documents
Format of the report
• Statement that the contractor has effectively implemented the tasks requested,
• Table which synthesises for each budgetary post all eligible and ineligible expenditures,
• Detailed description of each finding accompanied with comments of the audited. The price should be for a standard audit, without consideration of travel costs = Price A
financial standard audit The assignment concerns a financial audit of 300.000€ operating grant funded to a single entity. The tasks which have to be implemented by the contractor are defined point 3.1.1. of the specifications. Documents provided to the contractor
• Financial statement • Information concerning the beneficiary: name, address, phone, email, contact
person. • Legal basis for the grant • Exchanges and useful documents
Format of the report
• Responsibility of the auditor • Basis of the opinion, • Opinion, • Reservation.
The price should be for a standard audit, without consideration of travel costs = Price B The tenderer must propose a price for each standard audit, and the evaluation scenario will be as follows:
ScenarioMaximum price
(in €)AB
Total (*)(*) Total = A * 0,85 + B * 0,15
9.4 Award of the framework contract
The tenderers will be ranked with the following formula so as to determine the most economically advantageous bids. Weighting for quality = 70 Weighting for price = 30 Ranking formula: Score for tender X = (cheapest price / price of tender X)*30 + (total quality score tender X
/ 100)*70
23
9.5 When reopening competition with a view to signing a specific contract, tenders will be evaluated in stages as follows:
Evaluation of tenders will be done on the basis of the appropriate set of quality criteria depending of the type of audit.
9.5.1 agreed-upon-procedure and financial audit
9.5.1.1 Qualitative evaluation
(3) The quality of the methodology proposed for the audits (10 points).
(4) The proposed workplan for the specific contract execution including details on each phase (30 points).
(5) The justification of the allocation of financial and human resources proposed by the contractor for each of the following: standard audit, additional tasks13, travel costs (60 points).
Tenders which do not obtain at least 50% of the maximum score for each award criterion and subcriterion and at least 60% of the overall score for all the criteria will not be admitted to the next stage of the evaluation procedure.
9.5.1.2 Financial evaluation
The price used to determine the tender which offers the best value for money will be the total price proposed by the tenderer
9.5.1.3 Award of the specific contract
The tenderers will be ranked with the following formula. The contract will be awarded to the most economically advantageous bid. Weighting for quality = 20 Weighting for price = 80 Award formula:
Score for tender X = (cheapest price / price of tender X)*80 + (total quality score tender X / 100)*20
13 Additional tasks come from a significant modification in the standard audit defined in scenarii at point 9.3.2.; the
consequence is a change in the workload and therefore on the price. For examples, amount of the grant, consortia, modification in the tasks to implement,...
24
9.5.2 Other audits (ad hoc)
9.5.2.1 Technical evaluation
(1) The quality of the methodology proposed for the audits (30 points).
(2) The proposed workplan for the specific contract execution including details on each phase (30 points).
(3) The justification of the allocation of financial and human resources proposed by the contractor for each of the following: costs for audits and travel costs (40 points).
Tenders which do not obtain at least 50% of the maximum score for each award criterion and subcriterion and at least 60% of the overall score for all the criteria will not be admitted to the next stage of the evaluation procedure.
9.5.2.2 Financial evaluation
The price used to determine the tender which offers the best value for money will be the total price proposed by the tenderer
9.5.2.3 Award of the specific contract
The tenderers will be ranked with the following formula. The contract will be awarded to the economically most advantageous bid;
Weighting for quality = 50 Weighting for price = 50 Award formula:
Score for tender X = (cheapest price / price of tender X) * total quality score tender X
25
ANNEXES
27
Annex 1 -
Model framework contract
EUROPEAN COMMISSION DIRECTORATE-GENERAL FOR THE BUDGET The Director-General
Draft
FRAMEWORK SERVICE CONTRACT
CONTRACT No – [complete] The European Union (hereinafter referred to as "the Union"), represented by the European Commission (hereinafter referred to as "the Commission"), and the other contracting authorities, represented for the purposes of the signature of this contract by [forename, surname, function, department], of the one part, and [official name in full] [official legal form] [statutory registration number] [official address in full] [VAT registration number] (hereinafter referred to as "the Contractor"), [represented for the purposes of the signature of this contract by [forename, surname and function,]] of the other part List of contracting authorities
Institutions: Council European Economic and Social Committee (EESC) European External Action Service (EEAS) European Data Protection Supervisor (EDPS)
Executive agencies:
EACI (Executive Agency for Competitiveness and Innovation) EACEA (Education, Audiovisual and Culture Executive Agency) EAHC (Executive Agency for Health and Consumers) TEN-TEA (Trans-European Transport Network Executive Agency) ERCEA (European Research Council Executive Agency) REA (Research Executive Agency)
Joint undertakings:
28
29
SESAR ITER ARTEMIS CLEANSKY ENIAC IMI FCH
Regulatory agencies:
CEDEFOP - European Centre for the Development of Vocational Training EUROFOUND - European Foundation for the Improvement of Living and Working Conditions EEA - European Environment Agency ETF - European Training Foundation EMCDDA - European Monitoring Centre for Drugs and Drug Addiction EMEA - European Agency for the Evaluation of Medicinal Products OHIM - Office for Harmonisation in the Internal Market EU-OSHA - European Agency for Safety and Health at Work CPVO - Community Plant Variety Office CdT - Translation Centre for the Bodies of the European Union Europol - European Police Office EAR - European Agency for Reconstruction ISS - European Institute for Security Studies EUSC - European Union Satellite Centre EFSA - European Food Safety Authority Eurojust - European body for the enhancement of judicial co-operation EMSA - European Maritime Safety Agency EASA - European Aviation Safety Agency ENISA - European Network and Information Security Agency ECDC - European centre for the disease prevention and control ERA - European Railway Agency GNSS - European GNSS Supervisory Authority EDA - European Defence Agency CFCA - Community Fisheries Control Agency CEPOL - European Police College ECHA - European Chemicals Agency EIGE - European Institute for Gender Equality FRA - European Union Agency for Fundamental Rights EIT - European Institute of Technology EECMA - European Electronic Communications Market Authority ACER - Agency for the Cooperation of Energy Regulators Agency for the operational management of SIS II, VIS and EURODAC FRONTEX - European Agency for the Management of Operational Cooperation at the External Borders
30
HAVE AGREED
the Special Conditions and the General Conditions below and the following Annexes:
Annex I - Tender Specification (call for tender No [complete] of [complete])
Annex II - Contractor’s Tender (No … of …)
Annex III - Specific Contract which form an integral part of this contract (hereinafter referred to as “the contract”). The terms set out in the Special Conditions shall take precedence over those in the other parts of the Contract. The terms set out in the General Conditions shall take precedence over those in the Annexes. The terms set out in the Tender Specification (Annex I) shall take precedence over those in the specific contracts (Annex III), the latter taking precedence over the Tender (Annex II). Subject to the above, the various documents forming part of the contract are deemed to be mutually explanatory. Ambiguities or discrepancies within or between such parts shall be explained or rectified by a written instruction issued by the Commission, subject to the rights of the contractor under Article I.8 should he dispute any such instruction.
31
I – SPECIAL CONDITIONS ARTICLE I.1 - PURPOSE I.1.1 The purpose of the contract is to provide audits and controls services to the contracting authorities.
I.1.2 Signature of the contract imposes no obligation on the Commission to purchase. Only implementation of the contract through specific contracts is binding on the Commission.
I.1.3 Once implementation of the contract has been requested or has commenced, the contractor shall reply and execute the tasks in accordance with all the terms and conditions of the contract.
I.1.4 The contract does not confer on the contractor any exclusive right to provide the services described in Annex I to the Commission.
ARTICLE I.2 - DURATION I.2.1 The contract shall enter into force on the date on which it is signed by the last contracting party.
I.2.2 Under no circumstances may implementation commence before the date on which the contract enters into force. Execution of the tasks may under no circumstances begin before the date on which the order or specific contract enters into force.
I.2.3 The contract is concluded for a period of 12 months with effect from its entry into force. This contractual period and all other periods specified in the contract are calculated in calendar days unless otherwise indicated.
I.2.4 The orders or specific contracts shall be returned signed before the contract to which they refer expires.
The contract shall continue to apply to such specific contracts after its expiry, but only for a maximum of nine months after the date of the end of the framework contract.
I.2.5 The contract shall be renewed automatically up to three times under the same conditions, unless written notification to the contrary is sent by one of the contracting parties and received by the other three months before expiry of the period indicated in Article I.2.3. Renewal does not imply any modification or deferment of existing obligations.
ARTICLE I.3 - PRICES I.3.1 The maximum prices of the services shall be listed in Annex II.
I.3.2 Prices shall be expressed in euros.
ARTICLE I.4 - IMPLEMENTATION OF THE CONTRACT I.4.1 Multiple framework contract with reopening of competition
Within 15 working days of a request for services being sent by the Commission to the Contractors, the Commission shall receive the specific tender back, duly signed and dated. In the event of failure to observe these conditions the Contractor shall be considered to waive his participation in the specific competition. The Commission may sign a specific contract with the contractor who has submitted the best specific tender on the basis of the award criteria set out in the specifications. Within 10 working days of a specific contract being sent by the Commission to the Contractor, the Commission shall receive it back, duly signed and dated. The period allowed for the execution of the tasks shall start to run on the date indicated in the specific contract.
32
ARTICLE I.5 – PAYMENT PERIODS Payments under the contract will be made in accordance with Article II.4. Payments will be made only if the contractor has fulfilled all his contractual obligations by the date on which the invoice is submitted. I.5.1 Interim payments
Requests for interim payment by the contractor in accordance with the instructions laid down in Annex I shall be admissible if accompanied by: • an interim technical report • the relevant invoices, indicating the reference number of the contract and the order or specific
contract to which they refer provided that the report has been approved by the Commission. The Commission shall have twenty days from receipt to approve or reject the report, and the contractor shall have twenty days in which to submit additional information or a new report. An interim payment corresponding to the percentage referred to in specific contract shall be made within thirty days of the date on which the report is approved by the Commission.
I.5.2 Payment of the balance
The contractor's request for payment of the balance shall be admissible if accompanied by: • the final technical report in accordance with the instructions laid down in Annex I • the relevant invoices, indicating the reference number of the contract and the order or specific
contract to which they refer provided that the report has been approved by the Commission. The Commission shall have twenty days from receipt to approve or reject the report, and the contractor shall have twenty days in which to submit additional information or a new report. The balance corresponding to the amount referred to in the specific contract shall be paid within thirty days of the date on which the report is approved by the Commission.
*** For contractors established in Belgium, the orders shall include the following statement: “En Belgique, l’utilisation de ce bon de commande vaut présentation d’une demande d’exemption de la TVA n° 450” or an equivalent statement in the Dutch or German language. The contractor shall include the following statement on his invoice(s): “Exonération de la TVA, article 42, paragraphe 3.3 du code de la TVA” or an equivalent statement in the Dutch or German language.
ARTICLE I.6 - BANK ACCOUNT Payments shall be made to the contractor’s bank account denominated in euro, identified as follows:
33
Name of the bank: [complete] Address of branch in full: [complete] Exact designation of account holder: [complete] Full account number including codes: [complete] [IBAN code: [complete]]
ARTICLE I.7 - GENERAL ADMINISTRATIVE PROVISIONS Any communication relating to the contract or to its implementation shall be made in writing and shall mention the contract and order numbers or specific contract number. Ordinary mail shall be deemed to have been received by the Commission on the date on which it is recorded by the department responsible, as designated below. Correspondence shall be sent to the following addresses:
Commission: European Commission Budget Directorate-General Head of Unit BUDG/D3 Office: BREY 12/056. B-1049 Brussels Functional mailbox: [email protected] Contractor: Mr/Mrs/Ms … [Position] [Company name] [Official address in full]
ARTICLE I.8 - APPLICABLE LAW AND SETTLEMENT OF DISPUTES I.8.1 The contract shall be governed by European Union law, complemented, where necessary, by the
national substantive law of the Kingdom of Belgium.
I.8.2 Any dispute between the parties resulting from the interpretation or application of the contract
which cannot be settled amicably shall be brought before the courts of Brussels. ARTICLE I.9 – DATA PROTECTION Any personal data included in or relating to the contract, including its execution, shall be processed pursuant to Regulation (EC) No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. They shall be processed solely for the purposes of the performance, management and follow-up of the contract by unit BUDG/D03, without prejudice to possible transmission to bodies charged with a monitoring or inspection task in accordance with European Union law. The contractor shall have the right of access to his personal data and the right to rectify any such data. Should the contractor have any queries concerning the processing of his personal data, he shall address them to Unit BUDG/D03. The contractor shall have right of recourse at any time to the European Data Protection Supervisor. Where the contract requires the processing of personal data, the contractor may act only under the supervision of the data controller, in particular with regard to the purposes of the processing, the categories
34
of data which may be processed, the recipients of the data, and the means by which the data subject may exercise his rights. The data is confidential within the meaning of Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by Community institutions and bodies and on the free movement of such data. The Contractor shall limit access to the data to the staff strictly necessary for the performance, management and monitoring of the Contract. The contractor undertakes to adopt appropriate technical and organisational security measures having regard to the risks inherent in the processing and to the nature of the personal data concerned in order to: a) prevent any unauthorised person from gaining access to computer systems processing personal data, in particular with the aim of: aa) preventing any unauthorised reading, copying, alteration or removal of storage media; ab) preventing any unauthorised memory inputs as well as any unauthorised disclosure, alteration or erasure of stored personal data; ac) preventing unauthorised persons from using data-processing systems by means of data transmission facilities; b) ensure that authorised users of a data-processing system can access only personal data which their right of access allows them to consult; c) record which personal data have been communicated, at what times and to whom; d) ensure that personal data being processed on behalf of third parties can be processed only in the manner prescribed by the contracting institution or body; e) ensure that, during communication of personal data and during transport of storage media, the data cannot be read, copied or erased without authorisation; f) design its organisational structure in such a way that it will meet the requirements of data protection. ARTICLE I.10 - TERMINATION BY THE CONTRACTING PARTIES Either contracting party may, of its own volition and without being required to pay compensation, terminate the contract by giving three months' notice. Should the Commission terminate the contract, the contractor shall only be entitled to payment corresponding to the services ordered before the termination date. On receipt of the letter terminating the contract, the contractor shall take all appropriate measures to minimise costs, prevent damage, and cancel or reduce his commitments. He shall draw up the documents required by the Special Conditions for the services rendered up to the date on which termination takes effect, within a period not exceeding sixty days from that date. ARTICLE I.10a – CONTRACT CONCLUDED DURING STANDSTILL PERIOD If it is signed by both the Commission and the contractor before 14 calendar days have expired.
ARTICLE I.11 – OTHER SPECIAL CONDITIONS I.11.1 Interinstitutional framework contract
I.11.1 The Commission shall act on its own account and on behalf of the following institutions, agencies and joint undertakings ("the contracting authorities") for which it received power of attorney before signing the framework contract. The Commission shall sign the framework contract and any supplementary agreements on its own behalf and on behalf of all the contracting authorities. I.11.2 The Commission is responsible for managing the framework contract. It represents all the contracting authorities taking part. Other contracting authorities will be responsible only for the specific contracts which they award.
35
I.11.3 Should the contractor have a complaint against a contracting authority in relation to the conclusion, performance or termination of specific contracts, he remains bound by his obligations under the framework contract and the specific contracts signed with other contracting authorities. Without prejudice to Article I.8 of the Special Conditions, the contractor hereby expressly renounces compensation for or suspension of the performance of specific contracts related to other contracting authorities.
I.11.2 Damages in the event of failure to perform contractual obligations within the time limits set Should the contractor fail to perform his obligations under the contract within the time limits set, then, without prejudice to the contractor's actual or potential liability incurred in relation to the contract or to the Commission's right to terminate the contract, the Commission may decide to impose damages for each calendar day of delay amounting to:
V/d x 0.3
V is the amount specified in the specific contract concerned (Article III.3.1).
D is the period expressed in days, specified in the specific contract concerned (Article III.2.2).
The contractor may submit arguments against this decision within thirty days of notification by registered letter with acknowledgment of receipt or equivalent. In the absence of any reaction on his part, or of written withdrawal by the Commission within thirty days of the receipt of such arguments, the decision imposing damages shall become enforceable. Damages shall not be imposed where there is provision for interest for late completion. The Commission and the contractor expressly acknowledge that any sums payable under this Article are in the nature of damages and not penalties, and represent reasonable compensation for the losses that may be caused by such failure to perform obligations.
I.11.3 Failure to comply with the clause on the training of experts (cf. point 3.2.10 of the specification) In the event of failure by one or more members of the audit team to comply with the clause concerning the training of experts during the performance of a specific contract, this failure shall be assimilated to a delay of five calendar days and shall give rise to the imposition of the damages set out in point I.11.2.
36
II – GENERAL CONDITIONS
ARTICLE II.1 – PERFORMANCE OF THE CONTRACT II.1.1 The contractor shall perform the contract according to the highest professional standards. He shall
have sole responsibility for complying with any legal obligations incumbent on him, notably those resulting from employment, tax and social legislation.
II.1.2 The contractor shall have sole responsibility for taking the necessary steps to obtain any permit or
licence required for performance of the contract under the laws and regulations in force at the place where the tasks assigned to him are to be carried out.
II.1.3 Without prejudice to Article II.3, any reference made to the contractor’s staff in the contract shall
relate exclusively to individuals involved in the performance of the contract. II.1.4 The contractor must ensure that all staff performing the contract have the professional
qualifications and experience required for the execution of the tasks assigned to him. II.1.5 The contractor shall neither represent the Commission nor behave in any way that would give such
an impression. He shall inform third parties that he is not part of the European civil service. II.1.6 The contractor shall have sole responsibility for the staff who perform the tasks assigned to him.
The contractor shall make provision for the following employment or service relationships with his staff:
• staff carrying out the tasks assigned to the contractor may not be given orders directly by the
Commission, • the Commission may not under any circumstances be considered to be the staff's employer
and the said staff shall undertake not to invoke in respect of the Commission any right arising from the contractual relationship between the Commission and the Contractor.
II.1.7 In the event of disruption resulting from the action of a member of the contractor's staff working on
Commission premises or in the event of the experience and/or skills of a member of the contractor's staff failing to correspond to the profile required by the contract, the contractor shall replace him without delay. The Commission shall have the right to request the replacement of any such member of staff, stating its reasons for so doing. Replacement staff must have the necessary qualifications and be capable of performing the contract under the same contractual conditions. The contractor shall be responsible for any delay in the execution of the tasks assigned to him resulting from the replacement of staff in accordance with this Article.
II.1.8 Should any unforeseen event, action or omission directly or indirectly hamper execution of the
tasks, either partially or totally, the contractor shall immediately and on his own initiative record it and report it to the Commission. The report shall include a description of the problem and an indication of the date on which it started and of the action taken by the contractor to ensure full compliance with his obligations under the contract. In such an event the contractor shall give priority to solving the problem rather than determining liability.
II.1.9 Should the contractor fail to perform his obligations under the contract in accordance with the
provisions laid down therein, the Commission may - without prejudice to its right to terminate the
37
contract - reduce or recover payments in proportion to the scale of the failure. In addition, the Commission may impose penalties or damages as provided for in Article II.16.
ARTICLE II.2 – LIABILITY II.2.1 The Commission shall not be liable for damage sustained by the contractor in performance of the
contract except in the event of wilful misconduct or gross negligence on the part of the Commission.
II.2.2 The contractor shall be liable for any loss or damage caused by himself in performance of the
contract, including in the event of subcontracting under Article II.13. The Commission shall not be liable for any act or default on the part of the contractor in performance of the contract.
II.2.3 The contractor shall provide compensation in the event of any action, claim or proceeding brought
against the Commission by a third party as a result of damage caused by the contractor in performance of the contract.
II.2.4 In the event of any action brought by a third party against the Commission in connection with
performance of the contract, the contractor shall assist the Commission. Expenditure incurred by the contractor to this end may be borne by the Commission.
II.2.5 The contractor shall take out insurance against risks and damage relating to performance of the
contract if required by the legislation applicable. He shall take out supplementary insurance in line with standard practice in the industry. A copy of all the relevant insurance contracts shall be sent to the Commission should it so request.
ARTICLE II.3 - CONFLICT OF INTERESTS II.3.1 The contractor shall take all necessary measures to prevent any situation that could compromise the
impartial and objective performance of the contract. Such a conflict of interest might arise in particular as a result of economic interest, political or national affinity, family or emotional ties, or any other relevant connection or shared interest. Any conflict of interests which could arise during performance of the Contract must be notified to the Commission in writing without delay. In the event of such conflict, the Contractor shall immediately take all necessary steps to resolve it.
The Commission reserves the right to verify that such measures are adequate and may require that additional measures be taken, if necessary, within a time limit which it shall set. The Contractor shall ensure that his staff, board and directors are not placed in a situation which could give rise to conflicts of interest. Without prejudice to Article II.1, the Contractor shall replace, immediately and without compensation from the Commission, any member of his staff exposed to such a situation.
II.3.2 The contractor shall abstain from any contact likely to compromise his independence. II.3.3 The contractor declares:
• that he has not made and will not make any offer of any type whatsoever from which an unjustified advantage can be derived under the contract,
• that he has not granted and will not grant, has not sought and will not seek, has not attempted and will not attempt to obtain, and has not accepted and will not accept, any advantage, financial or in kind, to or from any party whatsoever, where such advantage constitutes an illegal practice or involves corruption, either directly or indirectly, inasmuch as it is an incentive or reward relating to performance of the Contract.
38
II.3.4 The contractor shall pass on all the relevant obligations in writing to his staff, board, and directors as well as to third parties involved in performance of the contract. A copy of the instructions given and the undertakings made in this respect shall be sent to the Commission should it so request.
ARTICLE II.4 – INVOICING AND PAYMENTS II.4.1 Pre-financing
Where required by Article I.5, the contractor shall provide a financial guarantee in the form of a bank guarantee or equivalent supplied by a bank or an authorised financial institution (guarantor) equal to the amount indicated in the same Article to cover pre-financing under the contract. Such guarantee may be replaced by a joint and several guarantee by a third party.
The guarantor shall pay to the Commission at its request an amount corresponding to payments made by it to the contractor which have not yet been covered by equivalent work on its part.
The guarantor shall stand as first-call guarantor and shall not require the Commission to have recourse against the principal debtor (the contractor).
The guarantee shall specify that it enters into force at the latest on the date on which the contractor receives the pre-financing. The Commission shall release the guarantor from its obligations as soon as the contractor has demonstrated that any pre-financing has been covered by equivalent work. The guarantee shall be retained until the pre-financing has been deducted from interim payments or payment of the balance to the Contractor. It shall be released the following month or, at the latest, three months after a recovery order has been drawn up. The cost of providing such guarantee shall be borne by the contractor.
II.4.2 Interim payments
At the end of each of the periods indicated in Annex I the contractor shall submit to the Commission a formal request for payment accompanied by those of the following documents which are provided for in the Special Conditions:
an interim technical report in accordance with the instructions laid down in Annex I; the relevant invoices indicating the reference number of the contract and of the order or specific
contract to which they refer; statements of reimbursable expenses in accordance with Article II.7.
If the report is a condition for payment, on receipt the Commission shall have the period of time indicated in the Special Conditions in which to:
approve it, with or without comments or reservations, or suspend such period and request additional information; or
reject it and request a new report.
If the Commission does not react within this period, the report shall be deemed to have been approved. Approval of the report does not imply recognition either of its regularity, or of the authenticity, completeness or correctness of the declarations or information it contains.
Where the Commission requests a new report because the one previously submitted has been rejected, this shall be submitted within the period of time indicated in the Special Conditions. The new report shall likewise be subject to the above provisions.
II.4.3 Payment of the balance
39
Within sixty days of completion of the tasks referred to in each order or specific contract, the contractor shall submit to the Commission a formal request for payment accompanied by those of the following documents which are provided for in the Special Conditions:
a final technical report in accordance with the instructions laid down in Annex I; the relevant invoices indicating the reference number of the contract and of the order or specific
contract to which they refer; statements of reimbursable expenses in accordance with Article II.7.
If the report is a condition for payment, on receipt the Commission shall have the period of time indicated in the Special Conditions in which to:
approve it, with or without comments or reservations, or suspend such period and request additional information; or
reject it and request a new report.
If the Commission does not react within this period, the report shall be deemed to have been approved. Approval of the report does not imply recognition either of its regularity, or of the authenticity, completeness or correctness of the declarations or information it contains.
Where the Commission requests a new report because the one previously submitted has been rejected, this shall be submitted within the period of time indicated in the Special Conditions. The new report shall likewise be subject to the above provisions.
ARTICLE II.5 – GENERAL PROVISIONS CONCERNING PAYMENTS I.5.1 Payments shall be deemed to have been made on the date on which the Commission's account is
debited. II.5.2 The payment periods referred to in Article I.5 may be suspended by the Commission at any time if
it informs the contractor that his payment request is not admissible, either because the amount is not due or because the necessary supporting documents have not been produced. If there is any doubt as to the eligibility of the expenditure indicated in the payment request, the Commission may suspend the time limit for payment for the purpose of further verification, including an on-the-spot check, in order to ascertain, prior to payment, that the expenditure is eligible. The Commission shall notify the contractor accordingly and set out the reasons for the suspension by registered letter with acknowledgement of receipt or by an equivalent means. Suspension shall take effect from the date of dispatch of the letter. The remainder of the period referred to in Article I.5 shall resume once the suspension has been lifted.
II.5.3 In the event of late payment the contractor shall be entitled to interest, provided the calculated interest exceeds EUR 200. If the interest does not exceed EUR 200, the contractor may claim interest within two months of receiving the payment. Interest shall be calculated at the rate applied by the European Central Bank to its most recent main refinancing operations (“the reference rate”) plus seven percentage points (“the margin”). The reference rate in force on the first day of the month in which the payment is due shall apply. This interest rate is published in the C series of the Official Journal of the European Union. Interest shall be payable for the period elapsing from the calendar day following expiry of the time limit for payment up to and including the day of payment. Suspension of payment by the Commission may not be deemed to constitute late payment.
ARTICLE II.6 – RECOVERY
40
II.6.1 If total payments made exceed the amount actually due or if recovery is justified in accordance with the terms of the contract, the contractor shall reimburse the appropriate amount in euro on receipt of the debit note, in the manner and within the time limits set by the Commission.
II.6.2 In the event of failure to pay by the deadline specified in the request for reimbursement, the sum due shall bear interest at the rate indicated in Article II.5.3. Interest shall be payable from the calendar day following the expiry of the due date up to the calendar day on which the debt is repaid in full.
II.6.3 In the event of failure to pay by the deadline specified in the request for reimbursement, the
Commission may, after informing the contractor, recover amounts established as certain, of a fixed amount and due by offsetting in cases where the contractor also has a claim on the Union or the European Atomic Energy Community that is certain, of a fixed amount and due. The Commission may also claim against the guarantee, where this is provided for.
ARTICLE II.7 - REIMBURSEMENTS II.7.1 Where provided by the Special Conditions or by Annex I, the Commission shall reimburse the
expenses that are directly connected with execution of the tasks on production of original supporting documents, including receipts and used tickets.
II.7.2 Travel and subsistence expenses shall be reimbursed, where appropriate, on the basis of the shortest
itinerary. II.7.3 Travel expenses shall be reimbursed as follows:
a) travel by air shall be reimbursed up to the maximum cost of an economy class ticket at the time of the reservation;
b) travel by boat or rail shall be reimbursed up to the maximum cost of a first-class ticket; c) travel by car shall be reimbursed at the rate of one first-class rail ticket for the same journey and
on the same day; d) travel outside Union territory shall be reimbursed under the general conditions stated above
provided the Commission has given its prior written agreement. II.7.4 Subsistence expenses shall be reimbursed on the basis of a daily allowance as follows:
a) for journeys of less than 200 km (return trip) no subsistence allowance shall be payable; b) daily subsistence allowances shall be payable only on receipt of a supporting document proving
that the person concerned was present at the place of destination; c) daily subsistence allowances shall take the form of a flat rate payment to cover all subsistence
expenses, including accommodation, meals, local transport, insurance and sundries; d) daily subsistence allowances, where applicable, shall be reimbursed at the rate specified in
Article I.3. II.7.5 The cost of shipment of equipment or unaccompanied luggage shall be reimbursed provided the
Commission has given prior written authorisation.
41
ARTICLE II.8 - OWNERSHIP OF THE RESULTS - INTELLECTUAL AND INDUSTRIAL PROPERTY Any results or rights thereon, including copyright and other intellectual or industrial property rights, obtained in performance of the contract, shall be owned solely by the Union, which may use, publish assign or transfer them as it sees fit, without geographical or other limitation, except where industrial or intellectual property rights exist prior to the contract being entered into. ARTICLE II.9 – CONFIDENTIALITY II.9.1 The contractor undertakes to treat in the strictest confidence and not make use of or divulge to third
parties any information or documents which are linked to performance of the contract. The contractor shall continue to be bound by this undertaking after completion of the tasks.
II.9.2 The contractor shall obtain from each member of his staff, board and directors an undertaking that
they will respect the confidentiality of any information which is linked, directly or indirectly, to execution of the tasks and that they will not divulge to third parties or use for their own benefit or that of any third party any document or information not available publicly, even after completion of the tasks.
ARTICLE II.10 - USE, DISTRIBUTION AND PUBLICATION OF INFORMATION II.10.1 The contractor shall authorise the Commission to process, use, distribute and publish, for
whatever purpose, by whatever means and on whatever medium, any data contained in or relating to the contract, in particular the identity of the contractor, the subject matter, the duration, the amount paid and the reports. Where personal data is concerned, Article I.9 shall apply.
II.10.2 Unless otherwise provided for by the Special Conditions, the Commission shall not be required to
distribute or publish documents or information supplied in performance of the contract. If it decides not to publish the documents or information supplied, the contractor may not have them distributed or published elsewhere without prior written authorisation from the Commission.
II.10.3 Any distribution or publication of information relating to the contract by the contractor shall
require prior written authorisation from the Commission and shall mention the amount paid by the Union. It shall state that the opinions expressed are those of the contractor only and do not represent the Commission's official position.
II.10.4 The use of information obtained by the contractor in the course of the contract for purposes other
than its performance shall be forbidden, unless the Commission has specifically given prior written authorisation to the contrary.
ARTICLE II.11 – TAXATION II.11.1 The contractor shall have sole responsibility for compliance with the tax laws which apply to him.
Failure to comply shall make the relevant invoices invalid. II.11.2 The contractor recognises that the Commission is, as a rule, exempt from all taxes and duties,
including value added tax (VAT), pursuant to the provisions of Articles 3 and 4 of the Protocol on the Privileges and Immunities of the European Union.
II.11.3 The contractor shall accordingly complete the necessary formalities with the relevant authorities
to ensure that the goods and services required for performance of the contract are exempt from taxes and duties, including VAT.
42
II.11.4 Invoices presented by the contractor shall indicate his place of taxation for VAT purposes and
shall specify separately the amounts not including VAT and the amounts including VAT. ARTICLE II. 12 – FORCE MAJEURE II.12.1 Force majeure shall mean any unforeseeable and exceptional situation or event beyond the control
of the contracting parties which prevents either of them from performing any of their obligations under the contract, was not due to error or negligence on their part or on the part of a subcontractor, and could not have been avoided by the exercise of due diligence. Defects in equipment or material or delays in making it available, labour disputes, strikes or financial problems cannot be invoked as force majeure unless they stem directly from a relevant case of force majeure.
II.12.2 Without prejudice to the provisions of Article II.1.8, if either contracting party is faced with force
majeure, it shall notify the other party without delay by registered letter with acknowledgment of receipt or equivalent, stating the nature, likely duration and foreseeable effects.
II.12.3 Neither contracting party shall be held in breach of its contractual obligations if it has been
prevented from performing them by force majeure. Where the contractor is unable to perform his contractual obligations owing to force majeure, he shall have the right to remuneration only for tasks actually executed.
II.12.4 The contracting parties shall take the necessary measures to reduce damage to a minimum. ARTICLE II. 13 – SUBCONTRACTING II.3.1 The contractor shall not subcontract without prior written authorisation from the Commission nor
cause the contract to be performed in fact by third parties. II.13.2 Even where the Commission authorises the contractor to subcontract to third parties, he shall none
the less remain bound by his obligations to the Commission under the contract and shall bear exclusive liability for proper performance of the contract.
II.13.3 The contractor shall make sure that the subcontract does not affect rights and guarantees to which
the Commission is entitled by virtue of the contract, notably Article II.17. ARTICLE II.14 – ASSIGNMENT II.14.1 The contractor shall not assign the rights and obligations arising from the contract, in whole or in
part, without prior written authorisation from the Commission. II.14.2 In the absence of the authorisation referred to in 1 above, or in the event of failure to observe the
terms thereof, assignment by the contractor shall not be enforceable against and shall have no effect on the Commission.
ARTICLE II.15 – TERMINATION BY THE COMMISSION
II.15.1 The Commission may terminate the contract, a pending order or a specific contract in the following
circumstances: a) where the contractor is being wound up, is having his affairs administered by the courts, has
entered into an arrangement with creditors, has suspended business activities, is the subject of
43
proceedings concerning those matters, or is in any analogous situation arising from a similar procedure provided for in national legislation or regulations;
b) where the contractor has not fulfilled obligations relating to the payment of social security
contributions or the payment of taxes in accordance with the legal provisions of the country in which he is established or with those of the country applicable to the contract or those of the country where the contract is to be performed;
c) where the Commission has evidence or seriously suspects the contractor, or any related entity or
person, of professional misconduct; d) where the Commission has evidence or seriously suspects the contractor or any related entity or
person, of fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the Union's financial interests;
e) where the Commission has evidence or seriously suspects the contractor, or any related entity or
person, of substantial errors, irregularities or fraud in the award procedure or the performance of the contract;
f) where the contractor is in breach of his obligations under Article II.3; g) where the contractor was guilty of misrepresentation in supplying the information required by the
Commission as a condition of participation in the contract procedure or failed to supply this information;
h) where a change in the contractor’s legal, financial, technical or organisational situation could, in the
Commission’s opinion, have a significant effect on the performance of the contract; i) where execution of the tasks under a pending order or a specific contract has not actually
commenced within fifteen days14 of the date fixed for this purpose, and the new date proposed, if any, is considered unacceptable by the Commission;
j) where the contractor is unable, through his own fault, to obtain any permit or licence required for
performance of the contract; k) where the contractor, after receiving formal notice in writing to comply, specifying the nature of
the alleged failure, and after being given the opportunity to remedy the failure within a reasonable period following receipt of the formal notice, remains in serious breach of his contractual obligations;
l) where, due to the termination of the contract with one or more of the contractors, there is no
minimum required competition within the multiple framework contract with reopening of competition.
II.15.2 In case of force majeure, notified in accordance with Article II.12, either contracting party may
terminate the contract, where performance thereof cannot be ensured for a period corresponding to at least one fifth of the period laid down in Article I.2.3.
II.15.3 Prior to termination under point c), d), e), h) or k), the contractor shall be given the opportunity to
submit his observations.
14 This period may be modified in the Special Conditions, depending on the nature of the contract.
44
Termination shall take effect on the date on which a registered letter with acknowledgment of receipt terminating the contract is received by the contractor, or on any other date indicated in the letter of termination.
II.15.4 Consequences of termination:
In the event of the Commission terminating the contract, a pending order or a specific contract in accordance with this Article and without prejudice to any other measures provided for in the contract, the contractor shall waive any claim for consequential damages, including any loss of anticipated profits for uncompleted work. On receipt of the letter terminating the contract, the contractor shall take all appropriate measures to minimise costs, prevent damage, and cancel or reduce his commitments. He shall draw up the documents required by the Special Conditions for the tasks executed up to the date on which termination takes effect, within a period not exceeding sixty days from that date. The Commission may claim compensation for any damage suffered and recover any sums paid to the contractor under the contract. On termination, the Commission may engage any other contractor to execute or complete the work. The Commission shall be entitled to claim from the contractor all extra costs incurred in doing so, without prejudice to any other rights or guarantees enforceable under the contract.
ARTICLE II.15a – SUBSTANTIAL ERRORS, IRREGULARITIES AND FRAUD ATTRIBUTABLE TO THE CONTRACTOR Where, after the award of the contract, the award procedure or the performance of the contract prove to have been subject to substantial errors, irregularities or fraud, and where such errors, irregularities or fraud are attributable to the contractor, the Commission may refuse to make payments, may recover amounts already paid or may terminate all the contracts concluded with the contractor, in proportion to the seriousness of the errors, irregularities or fraud. ARTICLE II.16 – DAMAGES Should the contractor fail to perform his obligations under the contract within the time limits set by the contract, then, without prejudice to the contractor's actual or potential liability incurred in relation to the contract or to the Commission's right to terminate the contract, the Commission may decide to impose damages of 0.2%15 of the amount of the relevant purchase per calendar day of delay. The contractor may submit arguments against this decision within thirty days of notification by registered letter with acknowledgment of receipt or equivalent. In the absence of reaction on his part, or of written withdrawal by the Commission within thirty days of the receipt of such arguments, the decision imposing damages shall become enforceable. Damages shall not be imposed where there is provision for interest for late completion. The Commission and the contractor expressly acknowledge that any sums payable under this Article are in the nature of damages and not penalties, and represent reasonable compensation for the losses that may be caused by such failure to perform obligations. ARTICLE II.17 – CHECKS AND AUDITS II.17.1 Pursuant to Article 142 of the Financial Regulation applicable to the general budget of the
European Communities, the European Court of Auditors shall be empowered to audit the documents held by the natural or legal persons receiving payments from the budget of the
15 The daily rate for damages may be modified in the Special Conditions where justified by the purpose of the contract.
45
European Union from signature of the contract up to five years after payment of the balance of the last implementation.
II.17.2 The Commission or an outside body of its choice shall have the same rights as the Court of
Auditors for the purpose of checks and audits of compliance with contractual obligations from signature of the contract up to five years after payment of the balance of the last implementation.
II.17.3 In addition, the European Anti-Fraud Office may carry out on-the-spot checks and inspections in
accordance with Council Regulation (Euratom, EC) No 2185/96 and Parliament and Council Regulation (EC) No 1073/1999 from signature of the contract up to five years after payment of the balance of the last implementation.
ARTICLE II.18 – AMENDMENTS Any amendment to the Contract shall be the subject of a written agreement concluded by the contracting parties. An oral agreement shall not be binding on the contracting parties. An order or a specific contract may not be deemed to constitute an amendment to the Contract. ARTICLE II.19 – SUSPENSION OF THE CONTRACT Without prejudice to its right to terminate the Contract, the Commission may at any time and for any reason suspend execution of all or part of the Contract, pending orders or specific contracts. Suspension shall take effect on the day the Contractor receives notification by registered letter with acknowledgment of receipt or equivalent, or at a later date where the notification so provides. The Commission may at any time following suspension give notice to the Contractor to resume the work suspended. The Contractor shall not be entitled to claim compensation on account of suspension of all or part of the Contract, orders or specific contracts. SIGNATURES For the Contractor, [company name/forename/surname/function] signature(s): _______________________
For the Commission, [full name/position] signature[s]: _____________________
Done at [Brussels], [date] Done at [Brussels], [date] In duplicate in English.
46
ANNEX I -
(ANNEX I TO THE SPECIFICATION IS THE FRAMEWORK CONTRACT) TECHNICAL SPECIFICATIONS (EXTRACT FROM TENDER SPECIFICATION)
47
ANNEX II -
TECHNICAL AND FINANCIAL TENDER
(THE RATES ARE AS IN ANNEX 2 TO THE SPECIFICATION)
48
ction,]]
ANNEX III -
SPECIFIC CONTRACT No – [complete]16 implementing Framework Contract No ...
The European Union (hereinafter referred to as "the Union"), represented by the European Commission (hereinafter referred to as "the Commission"), which is represented for the purposes of the signature of this contract by [forename, surname, function, department]17, of the one part, and [official name in full] [official legal form]18 [statutory registration number]19 [official address in full] [VAT registration number] (hereinafter referred to as "the contractor"20), [represented for the purposes of the signature of this contract by [name in full and fun of the other part
HAVE AGREED ARTICLE III.1: SUBJECT III.1.1 This specific contract implements Framework Contract No [complete] signed by the Commission
and the contractor on [complete date] [and renewed on complete date].
III.1.2 The subject of this specific contract is [short description of subject]. [This specific contract relates to lot [complete] of the Framework Contract.]
III.1.3 The contractor undertakes, on the terms set out in the Framework Contract and in this specific contract and the annex[es] thereto, which form an integral part thereof, to perform the following tasks [:] [specified in Annex [complete].]
ARTICLE III.2: DURATION
16 Options [in italics] to be deleted where not applicable. Options [in roman] to be completed. 17 The Commission official must be an authorising officer (by delegation or subdelegation) designated in accordance with Note
No 60008 of 22 February 2001 “Mise en place de la Charte des ordonnateurs”. 18 Delete if contractor is a natural person or a body governed by public law. 19 Delete if contractor is a body governed by public law. For natural persons, indicate the number of their identity card or,
failing that, of their passport or equivalent document. 20 In the case of a joint offer and provided the invitation to tender so specifies, the following clause should be added below the
identification of the parties: “The parties identified above and hereinafter collectively referred to as ‘the contractor’ shall be jointly and severally liable vis-à-vis the Commission for the performance of this contract”.
49
III.2.1 This specific contract shall enter into force [[on the date on which it is signed by the last contracting party] [on complete if it has already been signed by both contracting parties]].
III.2.2 The duration of the tasks shall not exceed [days/months]. Execution of the tasks shall start from [date of entry into force of this specific contract] or [indicate date]. The period of execution of the tasks may be extended only with the express written agreement of the parties before such period elapses.
ARTICLE III.3: PRICES III.3.1 The total amount to be paid by the Commission under this specific contract shall be EUR [amount
in figures and in words] covering all tasks executed.
III.3.2 Apart from the price [no expenses shall be reimbursed].
[For Contractors established in Belgium, the provisions of this contract constitute a request for VAT exemption No 450, provided the contractor includes the following statement in his invoice(s): “Exonération de la TVA, article 42, paragraphe 3.3 du code de la TVA” or an equivalent statement in the Dutch or German language.]
ARTICLE III.4: ANNEXE[S] Annex – Request for services and declaration of absence of conflict of interest SIGNATURES For the Contractor, [company name/forename/surname/function] signature(s): _______________________
For the Commission, [forename/surname/position] signature[s]: _____________________
Done at [Brussels], [date] Done at [Brussels], [date] In duplicate in English.
50
ANNEX -
INDICATIVE TASK SPECIFICATIONS ANNEXED TO EACH SPECIFIC CONTRACT
The description of the tasks should be brief and accurate. The guidelines below are designed to be adaptable to the wide variety of projects related to internal control and risk management. 1. Context/General information Give the name of the project of which the specific contract is a part and describe the main components, including the background (DG, policy, management mode, e.g. shared management, the financial circuit used, if applicable, the current degree of implementation of internal control, including major successes or problems to date, key or characteristic elements of the DG, etc.), and the main reference documents. 2. Object of the request for the provision of services State (i) The type of audit required; (ii) What will be audited (nature, technical description, financial volume, reports of previous audits where possible...) ; (iii) The type of report required. 3. Tasks to be achieved, guidelines and details on how they are to be achieved and on where they are to be carried out Duties List here (i) the tasks/activities to be carried out by the contractor, (ii) the scope of the work required for each task, (iii) the key stages in each task. Make a clear distinction between the tasks and responsibilities of the DG and those of the contractor. Methods State, where possible (i) the methods, (ii) include all specific instructions on how to achieve the tasks. Location State the location of the tasks to be carried out. 4. Timeframe and reports Indicate the project duration/schedule, the main key stages, including reports and other deliverables, and the schedule for each activity. Allow also for ex ante and ex post meetings (when the project is launched, and to assess preliminary results respectively). Schedule meetings for all the main stages, draft reports, final reports, etc. Specify the reports (e.g. template to be used), and the feedback required (in the event of a problem), with details about languages, delivery dates, and the number of copies required.
51
DECLARATION THAT THERE ARE NO CONFLICTS OF INTEREST (MODEL FOR THE SPECIFIC CONTRACT)
LETTER HEAD
Date….
SUBJECT: DECLARATION THAT THERE ARE NO CONFLICTS OF INTEREST
Reference: Specific contract No XXX for the supply of technical assistance services in the field of internal control and risk management
I the undersigned… [representative of name in full of the tenderer] tenderer in the aforementioned contract hereby confirm:
− that on the date of submission of the tender, the organisation that I represent and the staff proposed for this tender are not subject to a conflict of interest in the context of this specific contract; a conflict of interest could arise in particular as a result of economic interests, political or national affinities, family or emotional ties, or any other relevant connection or shared interest;
− that I will inform the authorising department, without delay, of any situation constituting a conflict of interest or which could give rise to a conflict of interest;
− that the organisation that I represent and the staff proposed have not made, and undertake not to make, any offer, of any type whatsoever, from which an advantage could be derived in connection with this contract;
− that the organisation that I represent and the staff proposed have not sought and will not seek, have not attempted and will not attempt to obtain, and have not accepted and will not accept, any advantage, financial or in kind, from any party whatsoever, where such advantage constitutes an illegal practice or involves corruption, either directly or indirectly, inasmuch as it is an incentive or reward relating to the performance of the contract;
− that I am aware that the Commission reserves the right to check this information, and I realise the possible consequences that may arise from any false declaration in providing the information required by the authorising department in order to participate in the specific contract.
Full name and signature: ………. Date:
DECLARATION ON HONOUR RELATING TO THE EXCLUSION CRITERIA
AND ABSENCE OF A CONFLICT OF INTEREST
NB: Tenderers are reminded that under point 9 of the specification, if a joint tender is submitted, then as with other documents relating to the exclusion and selection criteria referred to in points 10.1 and 10.2 of the specification, this declaration confirming the absence of any conflict of interest must be provided by each of the economic operators participating in a tender.
The undersigned [name of the signatory of this form, to be completed]:
□ acting in his/her own name (if the economic operator is a natural person or in case of own declaration of a director or person with powers of representation, decision-making or control over the economic operator21) or
acting as a representative (if the economic operator is a legal person) official name in full (only for legal persons): official legal form (only for legal persons): official address in full: VAT registration number: declares that he/she or the company or organisation that he/she represents: a) is not bankrupt or being wound up, is not having his/her/its affairs administered by the courts, has not
entered into an arrangement with creditors, has not suspended business activities, is not the subject of proceedings concerning those matters, and is not in any analogous situation arising from a similar procedure provided for in national legislation or regulations;
b) has not been convicted of an offence concerning professional conduct by a judgment which has the force of res judicata;
c) has not been guilty of grave professional misconduct proven by any means which the awarding authorities can justify;
d) has fulfilled all his/her/its obligations relating to the payment of social security contributions and the payment of taxes in accordance with the legal provisions of the country in which he/she/it is established, with those of the country of the awarding authority and with those of the country where the contract is to be performed;
e) has not been the subject of a judgement which has the force of res judicata for fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the Union's financial interests;
f) has not been the subject of an administrative penalty for being guilty of misrepresentation in supplying the information required by the awarding authority as a condition of participation in a procurement
21 Annex to be completed and inserted in case of “competitive” multiple framework contracts.
53
procedure or failing to supply information, or being declared to be in serious breach of his/her obligations under contracts covered by the budget.
In addition, the undersigned declares on his/her honour that: g) he/she has no conflict of interest in connection with the contract; a conflict of interest could arise in
particular as a result of economic interests, political or national affinities, family or emotional ties or any other relevant connection or shared interest;
h) he/she will inform the awarding authority without delay of any situation considered a conflict of interest or which could give rise to a conflict of interest;
i) he/she has not made and will not make any offer of any type whatsoever from which an advantage can be derived under the contract;
j) he/she has not granted and will not grant, has not sought and will not seek, has not attempted and will not attempt to obtain, and has not accepted and will not accept any advantage, financial or in kind, to or from any party whatsoever, constituting an illegal practice or involving corruption, either directly or indirectly, as an incentive or reward relating to award of the contract;
k) the information provided to the Commission within the context of this invitation to tender is accurate, trustworthy and complete;
l) in case of award of contract, he/she shall provide upon request the evidence that he/she is not in any of the situations described in points a, b, d, e above.
For situations described in a), b) and e), production of a recent extract from the judicial record is required or, failing that, a recent equivalent document issued by a judicial or administrative authority in the country of origin or provenance showing that those requirements are satisfied. Where the tenderer is a legal person and the national legislation of the country in which the tenderer is established does not allow the provision of such documents for legal persons, the documents should be provided for natural persons, such as the company directors or any person with powers of representation, decision-making or control in relation to the tenderer. For the situation described in point d) above, recent certificates or letters issued by the competent authorities of the State concerned are required. These documents must provide evidence covering all taxes and social-security contributions for which the tenderer is liable, including for example VAT, income tax (natural persons only), company tax (legal persons only) and social security contributions. For any of the situations described in a), b), d) or e), where any document described in the two paragraphs above is not issued in the country concerned, it may be replaced by a sworn or, failing that, a solemn statement made by the interested party before a judicial or administrative authority, a notary or a qualified professional body in the country of origin or provenance.
By signing this form, the undersigned acknowledges that he/she has been acquainted with the administrative and financial penalties described under Articles 133 and 134b of the Implementing Rules (Commission Regulation (EC, Euratom) No 2432/2002 of 23 December 2002), which may be applied if any of the declarations or information provided prove to be false. Surname, first name Date Signature
