2.3.6. Other essential points

Conflicts of interest:

A conflict of interest occurs when the impartial and objective exercise of the functions of the contracting authority, or observance of the principles of competition, non-discrimination against or equality of treatment of candidates, tenderers, applicants and contractors, is compromised for reasons involving family, emotional life, political or national affinity, economic interest or any other shared interest with a beneficiary of EU-funded programmes. A conflict of interest may arise where, for instance, a member of the evaluation committee or someone in the contracting authority or others involved in the procedure grant themselves, or others, unjustified direct or indirect advantages by influencing the outcome, or allow an expert or company to obtain information leading to an unfair advantage in subsequent or related procedures.

For instance, any firm or expert involved in preparing a project (e.g. drafting the terms of reference) must, as a rule, be excluded from being awarded a services contract that are based on those preparations, unless they can prove to the contracting authority that their initial involvement does not constitute unfair competition.

In the potential case of members of staff of the EU Delegations (local agents) proposed as experts by tenderers, the European Commission shall make sure that the contract with the EU institution is officially terminated before the expert starts to work on an EU financed project under a contract with an external organisation/company. In the case of civil servants or other staff of the public administration of the partner country, or of international/regional organisations based in the country, regardless of their administrative situation, these shall only be approved by the European Commission if well justified. The tenderer shall in its offer include information on the added value the expert will bring, as well as proof that the expert is seconded or on leave on personal ground. Candidates/tenderers/applicants that have a conflict of interest in relation to a particular contract are excluded from this contract award. The grounds for exclusion must be considered case by case. The European Court of Justice has consistently ruled that exclusion must be based on an actual risk of conflict based on the specific circumstances of the case in question. Any automatic exclusion deprives the candidate/tenderer/applicant of the right to present supporting evidence which might remove all suspicion of a conflict of interest.

Where a conflict of interest might occur with regard to on-going contracts, measures must be adopted to prevent or to resolve such a conflict, including cancelling the contract if necessary.

Awarding principles:

All contract awards partially or totally financed by the Budget and EDF must obey the principles of transparency, proportionality, equal treatment and non-discrimination.

Non-retroactivity:

Contracts take effect from the date of signature of the last signatory. All contracts must show the true dates on which the contracting parties signed them. Exceptionally, they are applicable from an earlier date (in cases of retroactive financing for instance).

Use of standard documents:

Standard contracts and document formats must be used.

Record keeping:

Subject to the contracting authority's legislation on access to documents, written records of the entire procurement and grant award procedure must be kept confidential and kept by the contracting authority in accordance with the policy adopted on archiving. If its law conflicts with the confidentiality required, the contracting authority must obtain prior authorisation from the European Commission before disclosing any information.

Unsuccessful proposals have to be kept for three years from the submission deadline of the call, while unsuccessful tenders have to be kept for five years from the submission deadline of the tender. Contractual and financial documents have to be kept for a minimum of seven years from payment of the balance and up to the prescription date of any dispute about the law governing the contract. During and after this period, the contracting authority will treat personal data in conformity with its privacy policy. The documents to be conserved include all the preparatory documents, the corresponding financing agreement, the originals of all applications/tenders/proposals submitted, and any related correspondence.

Financial guarantees (originals) must be kept in a safe place where they are protected against the risk of loss or theft up to the end of their validity period.

Availability of funds:

Before initiating any procedure, the funds must be available. Calls may exceptionally be launched with a suspension clause after prior approval of the relevant services. The call is then launched before the financing decision or before the signature of the financing agreement between the European Commission and the partner country. The call is cancelled if the European Commission decision is not taken or if the financing agreement is not signed. The contract cannot be signed until the funds are available (see point 2.4.12.).

Environmental issues:

Environmental matters must be duly considered, to the possible extent, subject to the principles governing the award of procurement contracts and grants such as competition and non-discrimination. This might result in more environment-friendly terms of reference/guidelines/specifications, increased use of information technology, and less paper consumption (with double-sided printing, degradable material for folders, presentations, etc.).

For instance, when drafting the technical specifications, consideration should be given to the greener products available on the market, provided this does not lead to a reduction of the competition.

Accessibility for disabled people:

All services, supplies, works and grants that relate to goods, services and infrastructures the subject of which is intended for the use of persons, whether general public or staff of the contracting entity must include in their technical specifications accessibility requirements for persons with disabilities following a "design for all approach" (reference can be made to national/European or international standards on accessibility).

Joint procurement with an EU Member State, an EFTA State or an EU candidate country:

In case of joint action between a EU institution and a contracting authority from a Member State, from an EFTA State or from an EU candidate country, the procurement procedure may be carried out jointly by the EU institution and that contracting authority. In this case, European Commission procedures apply22.

Nevertheless, in some specific cases, it may be decided that the procedural rules of that contracting authority apply, provided that they can be considered equivalent to those of the institution.

Ex post publication of beneficiaries:

In addition to the publicity rules applicable to each type of procedure, the European Commission provides information on the beneficiary of EU funds (both grants beneficiaries and procurement contractors) on an annual basis, regardless of the management mode used. The information is available at the following site: http://ec.europa.eu/europeaid/funding/about-funding-and-procedures/funding-recipients_en .


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22See Article 133 of the Rules of Application.