1. Does the statement in point 8 of the Application form only concerns the leader of a consortium?
The statement is signed by the leader of the consortium for all consortium members, since the leader is authorized by each consortium member to engage the entire consortium.
2. Is it necessary to provide a separate declaration of honour (in addition to the declaration of point 7 of the Application form) to declare that we are not in any of the situations for exclusion mentioned in the Practical guide to contract procedures for European Union external actions (PRAG), Section 2.6.10?
The declaration on honour on exclusion and selection criteria is the Annex A14 of PRAG and should be filled in by each Consortium member.
3. For an application only project references implemented by leader or partners count, but project references of subcontractors should not be included and will not be taken into account.
Usually the project references of subcontractors are not taken into account during the evaluation.
However, an economic operator may also, 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, therefore, including the subcontractors. 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. Such entitiesmust respect the same rules of eligibility as the economic operator.
4. Can a tenderer in his proposal include an expert who has been involved in appraisal and or preparation missions or in one of the first stages of the formulation of the Terms of Reference even if he will be hired on a contract basis and is not in any way connected to one of the partners?
As regards service tenders, tenderers have to provide the CVs, employer's certificate and references for the key experts proposed. The fact whether the expert described in your example will or will not be eligible, has to be assessed by the contracting authority on case by case basis taking into consideration whether his/her involvement in the initial stages of the project would or would not constitute a situation of conflict of interest, given the eventual unfair advantage or particular knowledge in relation to other tenderers not having at their disposal such expert.
5. In the application form for a service contract financed by the European Commission, we are concerned by a number of doubts about the interpretation of point 7 where it is indicated that one has to submit a signed declaration the model of which is provided further below. This foresees an annex listing "the enterprises in the same group or network". I would be grateful if you could precise:
- Which interpretation does DG DEVCO give to this text, notably to the judicial notion of a group? What about, for example, the participation in companies likely to submit their application, in parity with two other shareholders (e.g., 30/30/30/10)?
- In the case of two applications which unintentionally derive from companies of the same group, is it possible to withdraw one of the applications without impacting the other one?
As regards the first question, please note that the notion of a group of companies can only be assessed on a case-by-case basis. An abstract interpretation is therefore not possible. The possibility that you mention, in which an applicant (or member of a consortium) controls 30% of the capital of another applicant (or member of another consortium), constitutes at first sight a situation envisaged by point 7. It is, however, possible for the different members of the same group or network of companies to form a consortium.
Concerning the second question, a double participation, in competing consortiums, of companies of the same group, leads to the exclusion of both consortiums.
6. In the INSTRUCTION TO TENDERERS for Service Contract point on Financial offer there is a statement: "Financial offer [For global price contracts: The Financial offer must be presented as an amount in [ euro /<national currency> ] and must be submitted using the template for the global-price version of Annex V of part B of this tender dossier". We consider the Annex V- BUDGET is just a budget, without any signature, name of tenderer and could not be considered as the legal binding financial offer at all.
The Annex V - BUDGET is part of the tender to be submitted by tenderers in accordance with the first paragraph of the instruction to tenderers. Furthermore the tenderer confirms in the tender submission form that they will offer to provide the services requested in the tender dossier on the basis of a number of specified documents, which comprise the Technical offer and the Financial offer.
7. What is the status of subsidiaries and other partners forming a consortium and which are specified in point 1 of the Application form, where the names and nationality of leader and partners should be included. Are subsidiaries with different nationalities of the parent company participating in a service contract to be considered as partners or are they to be considered as part of the parent company, meaning that it is not necessary to provide any information of the subsidiary in the application form? The same questions could be addressed to the Commission concerning two or more public institutions under the same ministry but participating in the same contract or concerning companies forming a network for a specific task?
Subsidiaries of the same group actually taking part in the contract may put their names down as members of a consortium, provided they are separate legal entities. However, if the subsidiaries are not active in the contract they should not be considered as members of a consortium.
As regards companies forming a network with other companies, if you refer to the commercial relationship existing between a company and its subcontractors, then these companies are generally not considered as being part of the same group. The concept of network rather refers to the kind of complex relations between related entities, such as for example many larger audit firms, where there is no parent company-subsidiary-relationship between the entities of such a network.
8. According to the declaration attached to the Application form data must be provided for the individual partners of the consortium. Should a parent company, consisting of more individual business units with own management, provide consolidated data or data only for the business unit of the parent company?
If the subsidiaries are legal persons which do not contribute to the contract, they should not be included. If business units lacking legal status are part of the candidate company, they should be included in the consolidated data required.
9. According to the declaration attached to the Application form companies must attach a current list of enterprises in the same group or network and only include data in the application form concerning the resources and experience of the legal entity. How many levels of ownership, e.g. subsidiaries also owning subsidiaries 100% owning yet other subsidiaries 100% etc., must be included in the list?
The list should be comprehensive, to allow for the prohibition on conflict of interest between competing firms to be efficiently enforced.
10. Can the Contracting Authority prohibit a contractor to use an air carrier which is included in the European Union (EU) "blacklist"? On the contrary, can the Contracting Authority insist that a contractor takes the most direct route even if this route were only served by a blacklisted carrier?
Commission Regulation (EC) 474/2006 of 22 March 2006 established a list of air-carriers which are subject to an operating ban or operation restrictions within the EU (so-called Community "blacklist"). An operating ban means the refusal, suspension, revocation or restriction of an air carrier's operating authorisation in the EU. As a consequence of above legislation, the Commission instructed its travel agents not to cooperate with airlines on these lists with regard to all Commission staff missions.
Article 24(2) of the General Conditions for service contracts (applicable to the Budget and the 11th EDF) stipulates that the Consultant may include "time spent travelling exclusively and necessarily for the purpose of the Contract, by the most direct route" in the timesheets. However, it would be contradictory if the EC banned an airline from the EU and cancelled cooperation with this carrier with regard to its own staff because of safety concerns and then obliged its external contractors to use the carrier. Furthermore the contractor has an obligation to put in place security measures for its employees and experts located in the beneficiary country commensurate with the physical danger facing them.
In the light of these considerations, the notion "the most direct route" in the aforementioned articles has to be construed as including the most direct route that is not served by a carrier which is subject to an operating ban or operation restrictions under Regulation (EC) 474/2006 and that does not unreasonably and disproportionately prolongs the journey.
The Contracting Authority could in any event draw the contractor's attention to the existence of the blacklist to leave him the choice of the air carrier in full awareness of potential risks.
11. In the instruction to tenderers it is specified that documentary proof have to be submitted for the key experts’ diploma and experiences. What can we do if these documents are not available? In Annex IV the expert also have to specify a reference for the experience. What can we do if no reference is available, i.e. the company the expert worked for does no longer exist?
As the evaluation of the key experts as a general rule consists of 40 % of the scores allocated it is important to have reliable information. The documentary proof for the experts is needed to verify the correctness of the information submitted. If the documentary proofs or references are not available the tenderer has the possibility to justify this. The evaluation committee judges if the justification is acceptable or not and has the discretionary power to accept a tender which is missing some documentary proof.
12. The shortlist for a service contract has been published. Is it possible to modify the consortiums?
The instructions to tender ("3. participation, experts and sub-contracting" point d) indicate that tenders should be submitted by the same service provider or consortium which has submitted the application form. No changes in the identity or composition of the tenderer are permitted unless the Contracting Authority has given its prior approval.
Therefore, while the general rule is that modifications are not permitted, the Contracting Authority can still authorise minor modifications such as swapping positions within the consortium or when there are changes in the status of any of the companies, for instance because of a merge.
13. The Statement of Exclusivity and Availability (SoEA) Question: Is it correct to assume that the SoEA applies to key experts in long-term projects and for FWC assignments, but not for non key expert positions?
Answer: The published SoEA shall be used for the key experts proposed for tenders in procurement procedures for services. For global price contracts, the SoEA normally is not requested.
Q: What is meant by confirmed engagement?
A: The engagement of an expert is confirmed where such expert is committed to work as a key expert under an already signed contract financed by the EU's general budget or the EDF or where he/she is a key expert in a tender which has received a notification of award. The date of a confirmed engagement is when the notification of award is sent to the Consultant.
Q: When an expert has signed a SoEA for a project proposal, what should he/she do if he/she signs another SoEA for an overlapping project? Is there a standard procedure for updating the earlier SoEA(s) and adding the details of subsequent commitments? Should he/she fill in and sign a new version of the SoEA or simply inform the earlier contractor(s) by fax or email?
A: As mentioned in the SoEA, it is sufficient that the expert notifies the earlier contractor.
Q: When should the expert provide this updated information (making an additional commitment) – only after receiving written confirmation that he/she will be proposed for the new position or when the first approach is made?
A: The expert should inform immediately after he signs another SoEA.
Q: Shall this information be made available to the contracting authority? If the contracting authority is informed about any expert’s other possible commitments, is there not a risk that the CA will be materially influenced by this in evaluating the bids?
A: As indicated in the tender dossier, the contracting authority will evaluate the submitted tender, including the originally proposed experts, so there is no need to separately notify the contracting authority. Regardless this, the evaluation committees have the obligation to execute their duties impartially and objectively and any kind of information received will be handled in a neutral way.
Q: Is an expert required to inform the contractor(s) and contracting authority(ies) if included in a proposal for a non-EU/EDF-funded project (e.g. USAID, ADB, etc)?
A: This falls into the declaration in the statement, i.e. that the expert confirms that he/she has no other professional activity incompatible in terms of capacity and timing.
Q: Is there a maximum number of bids an expert can participate in?
A: No, there is no maximum number of bids. It falls into the risk assessment made by the experts and tenderers when preparing a tender.
Q: Does the SoEA apply to all service contracts, including FWC?
A: The published SoEA shall be used for all tenders in all procurement procedures for services unless a modified SoEA has been approved for a particular procedure. An example of such a case is the FWC.
Q: At what stage should an expert inform other tenderers that he/she is no longer available, after he/she has been offered an assignment – the moment he/she is informed of the offer or only when he/she has a signed contract with the contractor?
A: The expert has an obligation to notify the tenderer of his/her unavailability at the time the notification of award is received, as stated in the declaration.
Q: What will happen if the expert is unavailable at the time of notification of the award?
A: If the proposed expert is unavailable the awarded tenderer will have the possibility to propose a replacement expert. The tenderer shall justify why the expert is not available and the replacements shall be at least equally good in line with the evaluation criteria.
Q: If the key expert anyway may be replaced is there an obligation for the key expert who signs the SoEA to actually be available?
A: The contracting authority will select a tenderer partly on the basis of the evaluation of the key experts presented in the tender and expects the contract to be executed by these specific experts. Should the Contracting Authority learn that a tenderer has confirmed the availability of a key expert and signed the contract although the tenderer has deliberately concealed the fact that the expert is unavailable from the date specified in the tender dossier for the start of the assignment, the contracting authority may decide to terminate the contract.
14. Is travel time considered as working time?
The following provisions apply to both key experts and non key experts and for long-term and short-term assignments.
If the expert is travelling on a mission, outside the expert's place of posting and provided for in the Terms of References (ToR) annexed to the contract, the time spent travelling may be considered as working time and may be included in the time-sheets and invoiced.
If the expert is travelling to or from the place of posting for any other reason than a mission provided for in the ToR annexed to the contract, e.g. when the expert is taking up/leaving the assignment or travels for leave purpose..General Conditions from August 2018: Time spent travelling exclusively and necessarily for the purpose of the implementation of the contract, by the most direct route, may be included in the numbers of days or hours, as appropriate, recorded in these timesheets.