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Frequently asked questions - General

 

The FAQ will shortly be updated
to cater for the modifications
introduced in March 2013

 

Frequently asked questions - General

1.

What differences are there between the rules of the Practical guide to contract procedures for European Union external actions (PRAG) and the contracts when the Commission procures on its own behalf?

The procedures described in the PRAG can be found in the second part of the Financial Regulation ("External Actions"). They constitute a derogation in relation to the procedures which are prescribed to be used when the European Commission acts as Contracting Authority on its own account which are described in the first part of the Financial Regulation. The European Commission services have to pay attention to this distinction, notably for mixed contracts which often combine the two aspects (interest of the beneficiary country/of the European Union). It is worthwhile to draw the attention to the fact that the procedures differ strongly (deadlines, information of the tenderers, model notices, covered geographic areas, use of languages, selection criteria used in relation to service contracts) and that they are mutually exclusive.

2.

In tenders, can the Contracting Authority grant exceptions from the rules on nationality and origin?

In exceptional and duly substantiated circumstances there could be exceptions from the rules on nationality and origin but this will have to be approved before the launch of a procedure and should be clearly indicated in the tender documents so that the principles of transparency and equal treatment are respected.

3.

Can key staff members be non-European Union citizens?

Any expert proposed by the Contractor may be of any nationality, except where the applicable legal basis restricts the nationality of experts. Such restriction should be mentioned in the procurement documents (e.g. Instructions to Tenderers). The company  as such is however subject to the eligibility rules (established based on the law of registration of the company).

4.

Is it possible to waive the requirement of supporting documents and financial guarantees in procurement?

Within the limits laid down in the financial regulation and following a risk assessment, the authorising officer may waive:

  • the submission of  proof documents  for selection criteria for contracts below a certain threshold,  but then a financial guarantee covering the total amount of pre-financing is necessary . See the Practical guide to contract procedures for European Union external actions (PRAG) 2.4.11);
  • the submission of proof documents for exclusion criteria below a certain threshold  ( see PRAG  2.3.3);
  • the provision of financial guarantees for public bodies (see PRAG 2.4.11, 3.3.3., 4.3.2, 5.3.2).

The risk assessment has to be carried out for each procedure and it should be documented, e.g. in a note for the file when the tender documents are approved. Directorate-General for BUDGEThas issued guidelines on elements that could be considered in a risk assessment. 

5.

Which official documents do public administrations, public universities, chambers of commerce and other public entities, given that they are neither enrolled in the commercial register nor non-profit-making (and equally not able to submit business results) have to furnish?

It is up to the tenderer to present the documents proving his status as well as the elements required by the Contracting Authority. If the Authorising Officer deems it appropriate, he can in any event require the additional documents. The public entities participating in calls for proposals do not benefit from any particular derogation in this regard in the applicable texts. Their particular status can, however, be taken into consideration. An official document certifying the status of public administration of such an entity e.g. confirms that it cannot go bankrupt. It is, however, worthwhile to notice that companies or associations governed by private law which are under control of the state are generally open to judicial liquidation. Nevertheless, it is not possible to exempt the abovementioned public entities from the obligation to furnish the information allowing the determination of the economic and financial capacity of the candidates, without radically distorting competition with the other candidates who meet the requirements.

6.

Several tenderers are requesting clarifications about the PRAG. One of the main concerns is about the documentary evidence to be submitted with the application as per section 2.3.3 of the Practical guide to contract procedures for European Union external actions (PRAG). The questions are the following:

  1. Should these documents be provided in original?
  2. At what time in the procedure should the documentary evidence be provided?
  3. In some countries such as France, Italy etc, a sworn statement is legally accepted to cover the evidence requested by the PRAG, even though judicial or administrative authority also issues such documents. Can we accept either document? Finally, is there some directive, guideline, and/or note providing the list of the document considered as proof under the law of each of the member state?

As concerning the documents, a copy may also be accepted. The original documents shall however be available upon request by the Contracting Authority. The tender documents give instruction where in the procedure the proof documents should be submitted. For procurement procedures for service contracts the application form includes a model for a declaration that the applicant do not fall into any of the exclusion criteria. In the next phase of this procedure the proof documents should be submitted by all the shortlisted candidates who submit a tenderer. For 1 step procedures, such as the open procedure for supply and works, the tenderers have to sign a declaration, included in the tender form, where they declare that they do not fall into any of the exclusion situations. The documentary evidence is requested by the selected tenderer in the notification of the award. The sworn statement is legally accepted instead of the documents issued by the judicial or administrative authorities only in case where the country does not issue such legal documentary proof. A sworn statement has to be done in accordance with the provisions under the national law. Whenever the tenderer, due to its nature, cannot fall into any category for exclusion, a simple declaration explaining his situation will suffice. Information on the certificates that the Member States have reported, regarding which types of proof documents are issued/acceptable in each of the Member States, is available on the following website of Directorate-General for Internal Market: Certificates issued on the eligibility of tenderers and official lists of economic operators: http://ec.europa.eu/internal_market/publicprocurement/2004_18/index_en.htm. Please note that this list is indicative.

7.

According to the instructions to tenderers  the technical offer must include a completed financial identification form. Is a copy of the completed financial identification form sufficient or should the original always be included?

As the financial identification form is a document specific to the Directorate-General for Budget, a copy may not be accepted in this case. However, where the tenderer has already submitted such a form in a previous procedure with the European Commission, it may instead provide either its financial identification form number or a copy of the financial identification form provided on that occasion, unless a change occurred in the meantime.

8.

In the Published notices a Common Procurement Vocabulary Code (CPV Code) has to be chosen. What is the purpose, how can it be used and how does the Contracting Authority decide which one to choose?

The purpose of CPV

The CPV establishes a single classification system for public procurement aimed at standardising the references used by contracting authorities and entities to describe the subject of procurement contracts.

The use of CPV facilitates the search and filtering of published procurement notices. Using CPV makes your notices more visible for potential tenderers.

The structure of CPV

The main vocabulary is based on a tree structure comprising codes of up to nine digits associated with a wording that describes the supplies, works or services forming the subject of the contract.

  • The first two digits identify the divisions (XX000000-Y);
  • The first three digits identify the groups (XXX00000-Y);
  • The first four digits identify the classes (XXXX0000-Y);
  • The first five digits identify the categories (XXXXX000-Y);

Each of the last three digits gives a greater degree of precision within each category. A ninth digit serves to verify the previous digits.

Examples:

18000000-9 Clothing, footwear, luggage articles and accessories

18100000-0 Occupational clothing, special workwear and accessories

18110000-3 Occupational clothing

18113000-4 Industrial clothing

18114000-1 Coveralls

18130000-9 Special workwear

18132000-3 Flying clothing

18132100-4 Flight jackets

18132200-5 Flight suits

18200000-1 Outerwear

18210000-4 Coats

18211000-1 Capes

18212000-8 Cloaks

18213000-5 Wind jackets

18220000-7 Weatherproof clothing

18221000-4 Waterproof clothing

18221100-5 Waterproof capes

18221200-6 Anoraks

18221300-7 Raincoats

Where to find more info

More information on how to use CPV can be found in SIMAP website, CPV chapter. This information along with CPV Guide and Explanatory Notes are available in all EU official languages.

What to do in case of questions

With all questions about using CPV codes please contact SIMAP helpdesk (simap@publications.europa.eu) in any official language of the EU.

Examples of Usage:

CPV Usage pdf - 71 KB [71 KB] français (fr)

9.

What is C02 offsetting and what are the valid supporting documents?

Individuals, companies or governments may buy carbon offsetting credits to mitigate their own greenhouse gas emission (in our case only for airplane transportation). Carbon offsetting service can be purchased trough airplane companies or through a carbon offset provider supporting "Clean Development Mechanism" projects or "Gold Standard" projects.

CDM projects are those assessed and verified by the United Nations Framework Convention on Climate Change (UNFCCC) in developing countries which can sell certified emission reduction (CER) credits, each one equivalent to one ton of CO2. These CERs can be traded and sold and are currently used by industrialized countries to meet a part of their emission reduction targets under the Kyoto Protocol.

Gold Standard projects are CDM or voluntary offset projects giving an additional guarantee concerning sustainable development benefits. These are projects awarded the "Gold Standard" quality label by a Swiss-based non-profit foundation, supported by a group of 50 NGOs.

Supporting documents

If the carbon offsetting service is purchased trough an airplane company, the invoice/electronic invoice and certificate should be kept as part of the supporting documents.

If the carbon offset service is purchased on the voluntary market, the invoice and the certificate of the offset provider should be kept as part of the supporting documents. The invoice should normally mention the quantity of tonnes of CO2 offset and the CDM number of the project or state that the project obtained the Gold standard label.

These invoices and supporting documents will be processed as for any other cost and the auditor should examine them as part of the budget.

10.

During the tender evaluation phase we find one application submitted by a company that is partly owned by another company submitting a different proposal. Shall both companies be excluded?

The Procurement Notices state within "Number of Applications" (point 13 in services) or "Number of Tenders" (point 10 in works and supplies) that tenderes may submit only one tender in whatever form of participation.

In the event that a natural or legal person submits more than one application all tenders in which is included will be excluded from the process.

However, a mere finding of a relationship of control between the undertakings concerned by reason of ownership or the number of voting rights exercisable at ordinary shareholder's meetings is not sufficient for the contracting authority to automatically exclude those undertakings from the procedure of the award of contract. In such cases further investigation is required as to determine whether such a relationship has a specific effect on their conduct in the course of that procedure.

11.

When could a request for an extension to the implementation period be accepted?

If the extension is justified, an amendment to the contract is required. However, as a general rule the deadline for implementing the activities should not be extended (principle of equal treatment) and liquidated damages should be applied if there are delays in the implementation. Liquidated damages are not a penalty but a compensation for the losses from the contractor's failure to perform its contractual obligations. Sometimes, liquidated damages will not be enough and other actions would be required, such as termination of the contract, if the deliverable becomes irrelevant or unusable after the implementation deadline; reduction of payments in proportion to the scale of the failure, if there was only partial delivery at deadline; or claim for damages, if the Contracting Authority's liability against third parties is at stake.

Liquidated damages are not applied for a delay caused by the Contracting Authority or by "force majeure". However, "force majeure" only applies in situations like earthquakes and wars, not to illness, strike by the contractor's staff or if its staff members leave the company.

As soon as a delay is likely, the contractor should be reminded in writing by the Contracting Authority, and preferably before the deadline for implementation, about deadlines and liquidated damages. As calculation of delays must be based on precise dates, a written record is required to be able to prove dates in case of dispute.

If the contractor appears to contest the application of liquidated damages, the Contracting Authority's position has to be communicated by registered letter with proof of receipt.

12.

Is the enumeration of cases under the heading "Force Majeure" in the General Conditions of the contracts exhaustive? What happens if the national law of the beneficiary state foresees other cases?

The list of events mentioned in the current clauses is not exhaustive. In cases in which a situation which is not expressly foreseen in the General Conditions is considered constituting force majeure under the applicable law of the contract in question, each party to the contract may invoke these circumstances.

13.

Who may establish the existence of a crisis situation?

The crisis or urgency situation is to be decided exclusively by the authorising officer by delegation, i.e. EuropeAid Director General, without a possibility for further sub delegation. Where appropriate he consults with the other authorising officers by delegation. See further Annex A11 of Practical guide to contract procedures for European Union external actions (PRAG).

Last update: 09/04/2013 | Top