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How can an entity apply for EU external actions contracts?
Lisbon 24 November 2015 Agneta Lindqvist
International Cooperation and Development Unit E.3 – Finance, Contract and Audit for Sub-Saharan Africa
1
• Content
Instruments for financing
Practical Guide to contract procedures for EU external actions (PRAG)
Eligibility
Funding opportunities
Implementation of contracts
Common mistakes
More information?
2
English (en)
EDF / DCI
ENI
IPA
THEMATIC PROGRAMMES
LEGAL INSTRUMENTS
Who does what?
Multi-annual Programming
Evaluation
Implementation Formulation
Identification
Financing
Mainly EEAS supported by International Cooperation and Development – DG DEVCO
Joint responsibility
DG DEVCO with Delegations
DG DEVCO with Delegations
DG DEVCO with Delegations
Commission's Financing Decision
DIRECT
EU Delegations
Headquarters
Who launches the tender - who is the Contracting Authority?
Management Modes
Management modes in force from 01/01/2014
SHARED
EU Member States
INDIRECT
International Organisations
Partner Countries
EU MS Agencies
6
The Practical Guide - PRAG
The Practical Guide to contract procedures for European Union external actions
Why to we have it?
•Harmonisation of procedures
•Sole working tool
•Coherent application of rules
Where do I find it?
• http://ec.europa.eu/europeaid/about-funding_en
•
7
8
9
How is the PRAG structured?
As per type of contract
1. Services
2. Supplies
3. Works
4. Grants
+ Introduction and basic rules
11
Principles
Core principles
- Transparency
- Proportionality
- Sound financial management
- Equal treatment and non-discrimination
- Avoidance of any conflict of interests
- Widest competition
- Non-retroactivity
Why?
2 interests:
- Contracting Authority: to get a good deal
- Contractors: to get a fair chance to compete for the contract 12
13
Procurement
Procedures
Award procedures & publication requirements - How to award a contract?
• Call for Tenders:
• Open or restricted - International/Local
• Competitive Negotiated Procedure
• FrameWorkContract
• Single tenders
• Competitive Dialogue
• Very detailed exceptions where direct award
of contract may be allowed.
PRAG 6.3
14
Procurement procedures
Open tender / call for proposals Any operator can send a bid/proposal.
Restricted tender / call for proposals
Any bidder or applicant may apply to participate, but only
some will be invited to submit a bid/proposal following the
results of the pre-selection phase (selection criteria). There are
therefore two phases in the restricted procedure.
15
SERVICES
Service contract:
Contract between a service provider and the Contracting Authority for the provision of services such as technical assistance or studies
Technical assistance:
The service provider is called on to play an advisory role, to manage or supervise a project, or to provide the expertise specified in the contract
Studies:
It includes studies for the identification and preparation of projects, feasibility studies, economic and market studies, technical studies, evaluations and audits.
16
Types of service contracts
Global Price Fee-based
Specifies an outcome Specifies the means
Final Product Tasks performed
Payment linked to services
actually provided
E.g. Study, audits, training, E.g. Technical Assistance,
conferences Supervision.
SUPPLIES
Supplies contract:
They cover the purchase, leasing, rental or hire purchase (with or without option to buy) of goods.
The contract may include commissioning, spares, maintenance, after-sales service, training and/or other ancillary services.
18
WORKS
Works contract:
Cover either the execution, or both the execution and design, of works or the realisation by whatever means of a work corresponding to the requirements specified by the contracting authority.
A "work" is the outcome of building or civil engineering works taken as a whole that is sufficient of itself to fulfill an economic or technical function.
19
GRANTS
Grants are direct financial contributions, by the way of donation, from the budget in order to finance any of the following:
•An action intended to help to achieve a Union policy objective ("action grants")
•The functioning of a body which pursues an aim of general Union interest or has an objective forming part of, and supporting, a Union policy ("operating grants")
20
Which procedure for which amount?
SERVICE
CONTRACTS
≥ € 300 000
International restricted
tender procedure
< € 300 000 but > € 20 000
-Framework contracts
or
-Competitive negotiated procedure ≤ € 20 000
Single tender
For service, and supply
contracts, a payment may
be made against invoice
without prior acceptance of
a tender if the expenditure
is ≤ 2 500€
SUPPLY
CONTRACTS
≥ € 300 000
International open tender
procedure
< € 300 000 but ≥
€ 100 000
-Local open tender
procedure
or
-Frame work contract
< € 100 000 but
> € 20 000
-Competitive
negotiated procedure
or
-Frame work contract
WORKS
CONTRACTS
≥ € 5 000 000
-International open
tender procedure
or
-International
restricted tender
procedure
< € 5 000 000 but ≥
€ 300 000
Local open tender
procedure
< € 300 000 but>
€ 20 000
Competitive negotiated
procedure
• Procedures for service contracts
Single offer
FWC OR Competitive Negotiated Procedure
International restricted
0
20.000
300.000
Com
petitive D
ialo
gue
Negotiate
d p
rocedure
(e
xceptional)
Invoice
2.500
22
• International Restricted Tender for service contract
• "Step by step"
1. Publication
2. Shortlist *
3. Tender launch *
4. Tenders received
5. Evaluation
6. Contract Award
7. Contract Signature
23 * International Restricted Tender for services or works
• Publications
• Pre-information notice
• Contract notice
• Launch the procedure • Content legally binding • Deadline for reply • Defines criteria
• Shortlist • Award notice
24
• Shortlist
• Selection criteria will be applied
• Financial capacity
• Professional capacity
• Technical capacity
• Additional criteria
• 4-8 candidates will be invited to tender
• Report approved by Contracting Authority
25
• Tender Launch
• Dispatch Tender Dossier
• Unsuccessful candidates informed + publication of shortlist notice
• Deadline for submission = minimum 50 days
• Questions 21 days – Answers 11 days
• Tenders are valid 90 days (extension 40 days)
26
Key documents: Instructions to Tenderers & Terms of Reference
Different templates for global price and fee based
Requirements: min. quality standard
Contract objectives
Tasks
Info session / site visit
Logistics & timing
Expertise required
Key / non-key experts
Budget for fee based:
Fees
Incidental Expenditure
Lump sums
Expenditure Verification
27
• Evaluation
Odd number of voting members + secretary + chairperson
Declaration of impartiality and confidentiality
Held “in camera” in 5 phases:
• Tender Opening Session
• Administrative compliance
• Technical Evaluation (weighting 80%)
• Financial Evaluation (weighting 20%)
• Conclusion
28
Tender Opening Session
• Not public
• Check offers arrive sealed and within deadline
• Double Envelope System
• Declarations of impartiality & confidentiality
• Tender Opening Report
29
Administrative Compliance
• Fill in Administrative Compliance Grid
• Documentation complete as required
• Nationality of Sub-Contractors
• May request clarifications
30
Technical Evaluation
• Individual Evaluation Grids
• Evaluators give scores and comments
• Calculate average score for each offer
• Calculates technical score only if average 80% or more
• Possible interviews with key experts
• Technical score = average score x 100
• Highest scoring tender = 100 points
highest score
31
Financial Evaluation
• Open financial envelopes
• Check arithmetical errors
• Financial offer within maximum budget
• Financial score = lowest fees x 100
• Cheapest offer = 100 points
actual fees
32
Conclusion
Technical Score x 0.80
+
Financial Score x 0.20
Best value for money wins!
33
• Contract Award
The Committee recommends to • Award the contract to the best value for • money
or • Cancel the procedure
Contracting Authority must approve the evaluation report
34
• Contract Signature
• Inform successful Tenderer and verify that the key experts are available
• Information is simultaneously sent to all tenderers
• Prepare contract
• Sign and send contract
• Publish contract award
35
• Notification of results will be sent simultaneously to all tenderers immediately after the evaluation approval
• 3 types of
• information letters
36
a) successful tenderer
b) second best tenderer
c) unsuccessful tenderers
Validity of tender only kept for a+b
40 days extension of validity only exceptionally
37
The successful tenderer which is notified of award
must confirm that the key experts are availabile or
unavailable within 5 days of notification.
If the key experts are available the contract signature process is started.
The key expert must accept the first
post which is proposed chronologically.
Date of notification counts.
38
If a key expert is unavailable
the tenderer may propose
replacement experts within 15 days
of notification.
Justification for unavailability
must be given.
Several experts may be proposed
but within the 15 days
The CA shall choose expert
39
The replacement must be at least
equally good
The total scores of the original
key expert and the replacement are
compared – not each heading
The CA compares – not evaluation
committee
If no equally good replacement expert?
2nd best tender cancel
40
When the 2nd best tenderer is
notified of award it will be the
successful tenderer and the same
award procedure is repeated.
If the contract may not be signed with
the 2nd best tenderer the procedure
will be cancelled.
The approval dossier for the 2nd best tenderer shall
contain justification for rejection of the proposed
replacements.
41
The evaluation committee shall evaluate the
original tender including original key experts
regardless if these are available or not.
Even if informed about unavailaility?
YES
Should a tenderer deliberately conceal the fact that
a key expert is unavailable the evaluation committee
may recommend exlusion from the procedure.
42
• Time Line for Service Contract
Pre-information notice
30 days
Contract
Notice 30 days
Short List
Tender invitation 50 days
3 6
Procedure takes at least 6-7 months!
Award of contract
Signature of contract
Evaluation
43
Framework Contract
Published procedure to select contractors
Valid 2 years – may be extended once
Lots to divide the service areas
Specific contracts when using the FWC
At least 4 FWC will be consulted - must reply
Contract within 14 days usually
44
The main on-going framework contracts are:
• 1. Beneficiaries 2013
• The FWC BENEF 2013 provides short-term technical assistance assignments covering the entire range of project cycle operations in the field of external aid and in the exclusive interest of the beneficiary country.
• 2. Commission 2011
• The FWC COM 2011 is an instrument for recruiting expertise / logistics within 3 lots for activities in the interest of the EC (or mixed interest
• EC+ beneficiary country).
• 3. Audit 2014
• The FWC Audit 2014 provides services by professional firms for auditing programmes and projects of external aid for development financed by the EU. The audits can also cover contributions of the EU to international organisations in the context of development aid.
45
Supplies and Works contracts
46
Procedures Artificially splitting related activities into smaller lot sizes or contracts to circumvent the procurement thresholds is prohibited
47
Single tender
Competitive negotiated procedure
Local open tender
International open tender
0
300.000
Com
petitive D
ialo
gue
Negotiate
d p
rocedure
(e
xceptional)
100.000
20.000
Invoice
2.500
Time Line International Open call for tender
48
Prior information
notice 30 days
Contract Notice
60 days
March June
Procedure takes at least 6-7 months
Contract Award
Contract Signature
Evaluation
Procedures
Artificially splitting related activities into smaller lot sizes or contracts to circumvent the procurement thresholds is prohibited
49
Single tender
Competitive negotiated procedure
Local open tender
1. International open tender 2. International restricted tender
0 Com
petitive D
ialo
gue
Negotiate
d p
rocedure
(e
xceptional)
20.000
5.000.000
300.000
Time Line International Open call for tender
50
Prior information
30 days
Contract Notice
90 days
March June
Procedure takes at least 7 months
Contract Award
Contract Signature
Evaluation
Supply/Works Contracts
International Open Procedure
• Publication
• Tenders received
• Evaluation
• Contract Award
• Contract Signature
51
Differences with service tender
• Tender dossier is published (supply) or purchased (works)
• Information meeting and site visit
• Rules of Origin
• Incoterms
• One envelope system
• No budget published
• Tender guarantee (1-2% of budget)
• Financing (co-financed/financed)
• Sub-contractors and suppliers (to be named if more than 10%)
52
Supervisor
• The person or body who supervises the work
• The supervisor has the power to issue an
• administrative order to change any part
• of the works if necessary for the proper
• completion and/or functioning of the works.
• May include additions, omissions, substitutions, changes in quality, quantity, form, character, kind, position, dimension, level or line and changes in the specified sequence, method or timing of execution of the works.
• Power of supervisor clearly indicated in contract
53
Contract Notice
• Tender dossier is ready
• Published at least 60/90 days before deadline
• Tender guarantee (1-2%)
• No budget
• Defines criteria
54
Tender Period
• Contract Notice + Tender dossier published
• Deadline for submission = min. 60/90 days
• Questions 21 days – answers 11 days
Tenders are valid for 90 days only!
55
Tender Opening Session
• Public
• One Envelope System
• Announced: name of tenderer, price, offers arrive sealed, within
deadline, guarantee
• Tender Opening Report
Only accepted offers go on to next phase!
56
Administrative Compliance
• As from this phase the evaluation is not public
• Fill in Administrative Compliance Grid
• Documentation complete as required
• May request clarifications
Only compliant offers go on to next phase!
57
Technical Evaluation
• Individual Evaluation Grids
• Use published evaluation grids
• Close checking of origin of goods
• Check if offers comply with TS
• May request clarifications
Only technically compliant offers go on to next phase!
58
Financial Evaluation
• Check arithmetical errors
• Financial offer within maximum budget
• Discounts
• Evalutaion of variants
• Award of contract to the tenderer with lowest price
59
Contract Award
Committee recommends to
Award the contract to the compliant offer with lowest price
within the budget available
OR
Cancel the procedure
Contracting Authority must approve the evaluation report
60
Contract Signature
• Inform successful Tenderer and ask for
• “Proof documents” (15 days)
• Prepare contract
• Sign and send contract (30 days)
• Publish Contract Award Notice
• Inform unsuccessful Tenderers
(15 days)
61
Time Line restricted call for tender
Prior information
Notice 30 days
Contract Notice
30 days
Shortlist
Tender Launch
60 days
March June
Procedure takes at least 7 months
Contract Award
Contract Signature
Evaluation
Case study The EC Delegation in Kenya is going to launch a call
for tender for the supply of goods where the overall
budget is €140.000.
a) Which procedure should
they use?
b) There are not many local
suppliers on the market
in Kenya. How may this
be tackled? 63
Open local tender
• No prior information notice required
• No publication in OJ
• Contract notice published on EuropeAid, and summary published locally with address where to find Tender documents
• Tendering period is minimum 30 days
64
Competitive negotiated procedure
• No publication
• Invitation of at least 3 firms to submit an offer within at least 30 days
• To proceed with contracting, at least 1 fully compliant offer is required If not cancellation and possibility to negotiate
• Other rules of open tender apply by analogy
65
Competitive Dialogue
• Exceptional procedure
• To be used in the case of particularly complex contracts where it is not possible to define the technical means required or the legal or financial makeup of the project
• Contract notice individual dialogue with at least 3
candidates which meet the selection criteria Ensure: equal treatment, confidentiality
66
Negotiated Procedure
• No threshold – any amount
• Only applicable in those cases:
1. In case of urgency 2. With public entities/non-profit institutions
(social/institutional purpose) 3. Extends ongoing activities 4. When Tender procedure unsuccessful 5. Design competition (after contest) 6. Monopoly situation/exclusive rights 7. For contracts declared to be secret/protection of essential
interests 8. After early termination of an ongoing contract
Negotiation report
Supplies also:
Additional deliveries by the original supplier
Commodity market
Advantageous terms
Works also:
Additional works (not exceeding 50% of the amount of
the main contract)
68
What is a grant?
• Payment of non-commercial nature
• Achievement of an objective forming part of a European Union policy (or of the EU-ACP Agreement)
• Implementation of an action or functioning of a body
69
What is a procurement Comparison contract? with a grant
Procurement Grant
Purchase of
services/supplies/
works
Object -Action proposed by a potential beneficiary,
intended to achieve an EU-policy objective; or
-Functioning of a body
Contracting Authority Owner of
results
Grant beneficiary
100% Financial
contribution
Co-financing - % of total eligible costs
Reimbursement of the actual eligible cost
incurred
Tenders Procedure Calls for proposal
PROFIT NO PROFIT ALLOWED 70
Basic rules grants
Programming annual work programme
Transparency publicity of calls for proposals
Equal treatment impartial evaluation on the basis of published criteria
No cumulative grants only one grant per action
No retroactivity except in crisis situations and some particular cases
Co-financing unless a) necessary (certain actions) b) interest of the Community
No profit balance between income and expenditure
PRAG 6.2
71
Open call for proposals: steps 1. Publicity
2. Receipt and registration
3. Opening and administrative check 4. Assessment of the quality of the concept notes 5. Assessment of the technical and financial quality of the proposal 6. Eligibility 7. Committee’s recommendations
8. Approval of the Evaluation Report (award) + reserve list 9. Contract preparation 10. Publicity
72
73
Eligibility
Origin
Common eligibility
• Member States
• EEA
• Beneficiary countries of the programme
• Candidate and potential candidate countries
• International Organisations
• Reciprocity
• Natural and legal persons
• Individual expert any nationality
Particularities in eligibility
•IcSP and EIDHR
•Developing countries
•Overseas Countries and Territories (OCTs)
•Preference rules EDF
•3rd states in case of co-financing with other donors
Rules of origin
Follow nationality rules
All materials, equipment and services to be purchased under the contract
Tenderer must provide a statement
Derogation
76
My opportunities and how to apply
78
Searching for contract notices
79
80
81
84
Submission of applications • Only for international restricted procedures
• Reply to a Contract Notice. • Candidate demonstrate its capacity. • Respons period after the publication of the notice
• 30 days
• CN should be clear enough to avoid questions but
questions/clarifications are still allowed up to 21 days before submission deadline
• The application must reach the Contracting Authority by the deadline
Submission of tenders • Reply to an invitation to tender
• Respons period depending on type of procedure.
• 30, 50, 60, 90 days
• Questions/clarifications may be made up to 21
days before submission deadline. Response by Contracting Authority, to all tenderers simultaneously, no later than 11 days before the same deadline.
• The tender must reach the Contracting Authority by the deadline
Case study
The deadline for receiving tenders is Monday 15/11
at 16:00. You send your proposal by DHL on Friday
12/11. There is bad weather during the weekend
and flight is cancelled. The offer arrives to the
Contracting Authority on Monday at 16.10
Should in your opinion the tender be accepted by
the Contracting Authority?
Implementation of the EC contracts
88
The standard contracts
• Contract
• Annexes:
• Special Conditions
• General Conditions
• Terms of Reference / Technical Specification
• Technical Offer from tenderer
• Financial offer (budget)
• Expenditure verification report (services)
• Financial guarantee forms
• Various annexes depending on contract
• + clarifications from tender period and evaluation
Payments Pre-financing:
Services (global price) => 40%
Services (fee based) => 20%
Works => 10% ( 20% )
Supplies => 40%
Interim payments
Services (fee based)
Works
Final payment
Services (global price) => 60%
Services (fee based) => 10%
Supplies => 60%
Works contract balance
Pre-financing guarantee
≥ 300.000€
Below 300.000€ only if:
No proof docs
Risk analysis
Performance guarantee
Supplies and works
5-10 % of contract value
Retention guarantee
Works
10% of the interim payments
92
Implementation
• Measurements
• Interim payments
• Price revision
• Contingency
• Defect liability period
Contract amendments
General Principles
Addendum - major modifications
• Extend contract duration
• Major budget changes
• Additional or complementary services
• Replacement of key expert
Administrative order - minor modifications
• Address or bank account
• Auditor
• Within budget headings. From Fees to Incidentals
• Approval of non-key experts
Contract amendments
Addendum - major modifications
• Budget change
• Additional supplies
Administrative order - minor modifications
• Extend contract duration
• Address or bank account
Contract amendments
Addendum - major modifications
• Additional works - max 50%
• Extend contract duration if contractor at fault
Administrative order - minor modifications
• Address or bank account
• Additional works - max 15%
• Extend contract duration if contractor not at fault
96
Common mistakes
• Common mistakes made by candidates and tenderers Administrative reasons
•Late arrival
•Incomplete documentation
•Not in accordance with templates
•Tenderer/Applicant/partner not eligible
•Financial offer not in a separate envelope (only for
service tenders)
•Not signed
•Do not fulfil the selection criteria
•Financial offer is visible in technical offer (service contracts)
• Technical reasons
•Experts do not have the required experience
•Copy and paste of Terms of Reference
97
• Some recommedations and
• suggestions
• Pay extra attention to:
• Criteria on Contract notice
• Eligibility: especially nationality
• Evaluation Grids
• Questions during procedure
• Quality of the Offer
• Respect of formal submission requirements
98
Useful tips
• Stay informed! Website, Platforma etc
• Need people who know how to write well
• Need good CVs
• Don't hesitate to ask questions
• What is not prohibited is allowed
• The number of companies in a consortium can be freely decided but the rationale needs to be explained
• If not successful you may ask for reasons
• Verify your own tender/proposal by using the evaluation grid
• ”Lesson’s learnt” from earlier applications/tenders
99
• My company does not fulfill the selection criteria…
• Form a consortium (the consortium as a whole must meet the criteria, not each individual company)
• Try and gain relevant experience as consortium partner or subcontractor
• Rely on a third party in some cases
100
Legal remedies
• Accept to lose in a fair procedure
• Need for facts/basis for argument
• Formal channels
• Contracting Authority
• Ombudsman
• National court
PRAG 2.4.15 – Legal remedies
101
102
More information
Information Tools
• EuropeAid webpage: search engine for
contract notices, PRAG, annexes, news …
http://ec.europa.eu/europeaid/index_en.htm
• Training/presentations
• Helpdesk: europeaid-legal-
What to do next? Some ideas:
• Closer to the action:
Country/Countries - Country Strategy Paper (CSP) and Multi-Annual Indicative Programme
http://eeas.europa.eu/countries/index_en.htm
Embassy/EU Delegation
http://eeas.europa.eu/delegations/web_en.htm
• EuropeAid Annual Report http://ec.europa.eu/europeaid/annual-reports_en
• EuropeAid Info Point http://ec.europa.eu/europeaid/external-cooperation-
infopoint_en
•Questions ?
105
Criteria
• Exclusion Purpose: to determine if the operator is allowed to participate, be
awarded or implement a contract
Selection
Purpose: to determine if the operator has the necessary capacity to implement the contract
• Evaluation Purpose: to assess if the quality of the offer is according to the
requirements
• Award Purpose: to determine which the best offer is
Criteria
1. Exclusion criteria
Operators will be excluded if:
•Bankruptcy, affairs administered by court, arrangement with creditors, suspension of business activities •Convicted of an offence concerning their professional conduct •Guilty of grave professional misconduct •Not in compliance with social security contributions or payment of taxes •Fraud, corruption, money laundering, involvement in a criminal organisation •Subject to an administrative penalty by the EU Financial regulation
108
Criteria
2. Selection criteria
•Economic and financial capacity
Example: the tenderer's average annual turnover in the last three years must exceed the annualized maximum budget of the contract / financial proposal of the tender
•Professional capacity
Examples: - number of permanent staff or in a concrete field in last 3 years - the tenderer has an ISO 9000 certificate
•Technical capacity
Example: "x" implemented projects in the last 3 years (5 for works) of at least a certain amount
109
Criteria
3. Award criteria Purpose: to determine which the best offer is
•Price:
The award of the contract is made to the cheapest bid amongst those technically compliant. For supply and works.
•Best value for money: Used in services or very complex tenders. The award is a combination of price and quality
110
Point 21- Contract Notice
1) Economic and financial standing of candidate
The average annual turnover of the candidate must exceed 3 times the annualised maximum budget of the contract
2) Professional capacity of candidate
At least 7 permanent staff members currently work in fields related to this contract.
3) Technical capacity of candidate
a) The candidate has worked successfully on at least one project with a budget of at least X € in fields related to this contract in the past three years.
b) The candidate must have experience in …
LOT No.
1. FWC BENEF LOT Title NUMBERS OF FWC
CONTRACTORS in the LOT
1 Rural Development and food security 6
2 Transport and Insfractructures 6
3 Telecommunications and information technologies 3
4 Energy and nuclear safety 4
5 Conferences 4
6 Environment 4
7 Governance and Home Affairs 6
8 Health 3
9 Culture, Education, employment, and Social 6
10 Trade, Standards and Private sector 6
11 Macro economy, Statistics, Public finance management 4
12 Humanitarian Aid, Crisis Management and Post-crisis assistance 3
TOTAL 55
7