personal data in this document have been redacted...
TRANSCRIPT
Invitation to tender and ToRs Version 05/ 2013
EUROPEAN COMMISSION Directorate-General for Trade
Directorate B - Services and Investment, Intellectual Property and Public Procurement The Director
Brussels, 21 May 2013
Dear Sir/Madam,
Subject: Invitation to tender related to a contract to provide a Trade Sustainability
Impact Assessment (Trade SIA) in support of negotiations on a plurilateral
Trade in Services Agreement
1. The European Commission is planning to award the public contract referred to above.
Please find enclosed the related tender specification listing all the documents that must
be produced in order to submit a tender, and the draft contract.
2. If you are interested in this contract, you should submit a tender in one original and two
copies in one of the official languages of the European Union.
Tenderers shall submit tenders by letter:
a) either by post or by courier not later than 17/07/2013, 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 address indicated below.
b) or delivered by hand not later than 16.00 on 17/07/2013 to the address indicated
below. 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.
The department is open from 08.00 to 17.00 Monday to Thursday, and from 8.00 to
16.00 on Fridays. It is closed on Saturdays, Sundays and Commission holidays.
By post:
CALL FOR TENDERS
Tender to provide a Trade Sustainability
Impact Assessment (Trade SIA) in support of
By courier or by hand:
CALL FOR TENDERS
Tender to provide a Trade Sustainability
Impact Assessment (Trade SIA) in support of
Personal data in this document have been redacted according to the General Data Protection Regulation 2016/679 and the European
Commission Internal Data Protection Regulation 2018/1725
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negotiations on a plurilateral Trade in
Services Agreement - TRADE/2013/B1/B02
European Commission
Directorate-General for Trade,
For the attention of Unit A1 - Resources and
Strategic Planning (CHAR 07/03)
TRADE/2013/B1/B02
B – 1049 Brussels
Belgium
negotiations on a plurilateral Trade in
Services Agreement - TRADE/2013/B1/B02
European Commission
Directorate-General for Trade,
For the attention of Unit A1 - Resources and
Strategic Planning (CHAR 07/03)
TRADE/2013/B1/B02
Avenue du Bourget 1
B-1140 Brussels (Evere)
Belgium
Tenders (original plus two copies) must be placed inside two sealed envelopes, one inside the
other. Both envelopes should mention the following reference: TRADE/2013/B1/B02. The
inner envelope, addressed to the Department indicated in the invitation to tender, should be
marked: "INVITATION TO TENDER RELATED TO A CONTRACT TO PROVIDE A
TRADE SUSTAINABILITY IMPACT ASSESSMENT (TRADE SIA) IN SUPPORT OF
NEGOTIATIONS ON A PLURILATERAL TRADE IN SERVICES AGREEMENT – NOT
TO BE OPENED BY THE INTERNAL MAIL DEPARTMENT ". If self-adhesive envelopes
are used, they must be sealed with adhesive tape and the sender must sign across this tape.
The inner envelope must also contain two sealed envelopes, one containing the technical
tender and the other the financial tender. Each of these envelopes must clearly indicate the
content ("Technical" and "Financial").
Any other method of transmission of the tender (i.e. e-mail, etc.) is not permitted and will
automatically render the tender null and void even if the tender has also been sent by the
required method specified above.
3. Tenders must be:
- signed by a duly authorised representative of the tenderer;
- perfectly legible so that there can be no doubt as to words and figures;
- drawn up using the model reply forms in the tender specification.
4. The period of validity of the tender, during which tenderers may not modify the terms of
their tenders in any respect, is six months from the final date for submission.
5. Submission of a tender implies acceptance of all the terms and conditions set out in this
invitation to tender, in the tender specification and in the draft contract and, where
appropriate, waiver of the tenderer's own general or specific terms and conditions.
Submission of a tender is binding on the tenderer to whom the contract is awarded for
the duration of the contract.
6. All costs incurred during the preparation and submission of tenders are to be borne by
the tenderers and will not be reimbursed.
7. Contacts between the contracting authority and tenderers are prohibited throughout the
procedure save in exceptional circumstances and under the following conditions only:
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- Before the final date for submission of tenders:
* At the request of the tenderer, the contracting authority may provide additional
information solely for the purpose of clarifying the nature of the contract.
Any requests for additional information must be made in writing only to
Requests for additional information received less than five working days before the
final 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 any other clerical error in the text of the call for tenders.
* Any additional information including that referred to above will be posted on:
http://ec.europa.eu/trade/about/procurement/calls-for-tender/index_en.htm
. The website will be updated regularly and it is the tenderers' responsibility to check
for updates and modifications during the tendering period.
- After the opening of tenders
* If clarification is required 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.
8. 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.
9. Up to the point of signature, the contracting authority may either abandon the
procurement or cancel the award procedure, without the candidates or tenderers being
entitled to claim any compensation. This decision must be substantiated and the
candidates or tenderers notified.
10. Once the Commission has opened the tender, the document shall become the property of
the Commission and it shall be treated confidentially.
11. You will be informed of the outcome of this procurement procedure.
12. If processing your reply to the invitation to tender involves 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 , TRADE/B.1, Services, DG Trade. Details
concerning the processing of your personal data are available on the privacy statement
at: http://ec.europa.eu/dataprotectionofficer/privacystatement publicprocurement en.pdf.
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13. Your personal data may be registered in the Early Warning System (EWS) only or both
in the EWS and Central Exclusion Database (CED) by the Accounting Officer of the
Commission, should you be in one of the situations mentioned in:
- the Commission Decision 2008/969 of 16.12.2008 on the Early Warning System (for
more information see the Privacy Statement on
http://ec.europa.eu/budget/contracts grants/info contracts/legal entities/legal entities en.cfm ),
or
- the Commission Regulation 2008/1302 of 17.12.2008 on the Central Exclusion
Database (for more information see the Privacy Statement on http://ec.europa.eu/budget/explained/management/protecting/protect en.cfm#BDCE )
Date and signature
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TERMS OF REFERENCE
Related to a contract to provide a Trade Sustainability Impact Assessment (Trade SIA)
in support of negotiations on a plurilateral Trade in Services Agreement
Reference of the contract notice: 2013/S 104-177413
1. BACKGROUND INFORMATION OR MISSION STATEMENT OF THE DIRECTORATE
GENERAL FOR TRADE (DG TRADE):
DG Trade is in charge of conducting the Union's commercial policy in accordance with
the objectives set out in Articles 206 and 207 of the Treaty on the Functioning of the EU.
DG Trade helps through the EU's trade policy to secure prosperity, solidarity and
security in Europe and around the globe. We support the EU's Trade Commissioner and
the whole of the European Commission in shaping a trade environment that is good for
people and for business.
We are committed to helping world trade and development, thereby boosting
competitiveness, jobs and growth in the process.
We have a full agenda: negotiating bilateral and multilateral trade agreements, ensuring
that the rules we agree are actually applied, and working closely with the WTO and other
multilateral institutions. This allows us to tackle international trade and customs barriers,
backed up where needed with EU legislation. Our aim is to meet the challenges posed by
globalisation and to ensure that as many people as possible can seize the opportunities it
offers.
We cover all areas of activity from manufactured goods to services, intellectual property
and investment. We ensure that our businesses can operate fairly in the EU and across
the world and are ready to make full use of our powers to tackle unfair competition and
dumping. We work closely with many other services of the Commission - both those
shaping our external agenda and those making sure our internal market works - in order
to deliver joined up, coherent policies that strengthen Europe's voice in the world and
allow people to learn from our experience of integration.
Our success in Europe is inextricably bound up with the success of our trading partners,
both in the developed and developing world. For this reason, sustainable development
and development policy in general are central to our overall approach. And as the EU's
negotiator in most areas our success is equally dependent on our close working
relationship with the other European Institutions and with the Member States.
See also: http://ec.europa.eu/trade/whatwedo/work/index_en.htm
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2. CONTEXT OF THE PROJECT
The project is about the negotiation and conclusion of a stand-alone plurilateral Trade in
Services Agreement between the EU and currently 21 other WTO-members, being Australia,
Canada, Chile, Chinese Taipei, Colombia, Costa Rica, Hong Kong China, Iceland, Israel,
Japan, the Republic of Korea, Mexico, New Zealand, Norway, Panama, Paraguay, Pakistan,
Peru, Switzerland, Turkey and the USA. Those 22 WTO-members represented around two
thirds of global trade in cross-border services (excluding intra EU trade) in 2010.
This future trade in services agreement should be based on the General Agreement on Trade
in Services ("GATS"), and is meant to advance the stalled multilateral negotiations carried out
under the umbrella of the World Trade Organisation ("WTO") with those countries that are
willing to continue negotiations on trade in services. Although the negotiation of the
agreement would be outside of the auspices of the WTO, the current potential members of the
agreement share the understanding that the agreement should be brought back to the WTO
and GATS, should a critical mass of WTO-members support that. Please find below more
background on the GATS, the multilateral negotiations under the WTO and the initiative for a
plurilateral agreement on trade in services.
2.1. History of multilateral services agreements
The GATS and its disciplines
The GATS is a multilateral agreement on trade in services which was concluded in 1994 and
entered into force in January 1995. The GATS was negotiated over years during the so-called
Uruguay Round negotiations (1986-1994) which led to the creation of the WTO. It is the
services equivalent to the General Agreement to Trade in Goods ('GATT') as it provides for a
general framework for services trade liberalisation amongst WTO members. The GATS is the
first and only set of multilateral rules and commitments covering government measures which
affect trade in services. It consists of three main parts:
– the framework agreement containing the general rules such as the most-favoured-
nation principle (as in the GATT), transparency and domestic regulation, general and
security exceptions;
– annexes with rules for specific sectors (e.g. on telecommunication and financial
services) and
– the national "schedules of commitments" in which each WTO member specifies the
degree of access it is prepared to guarantee for foreign service suppliers. The latter
means that each of the currently 159 WTO members individually defines what
services sector it wishes to open to foreign competition and to what extent.
The GATS contains two broad categories of rules ('disciplines').
– The first category are general rules which apply, for the most part, to trade in all
services ('horizontal disciplines'). The most significant general rule is that of the 'Most
Favoured Nation Treatment' ('MFN'). As in the GATT, MFN means that countries
must give equal and consistent treatment to all foreign trading partners. The WTO
describes this as 'favour one, favour all', i.e. all WTO members enjoy the benefits of
those commitments automatically and unconditionally. An exemption from this
horizontal rule has to be negotiated and listed in an MFN-exemption list. Moreover,
under certain conditions, GATS also provides for an exemption from the MFN
principle for so-called "economic integration agreements" between WTO members.
These are bilateral or regional free trade agreements between certain WTO members
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such as the agreement between the EU Member States, NAFTA, or the bilateral free
trade agreement between the EU and the Republic of Korea.
– The second category are rules applicable to individual, national commitments in
specific services sectors only. These "à la carte disciplines" are the market access
('MA') and national treatment ('NT') principles. Market access commitments for
specific service sectors could be assimilated to market access concessions made in
Members’ Schedules to the GATT 1994. They are concessions which prescribe the
minimum treatment that a foreign service or service supplier must be accorded by the
WTO member concerned. The GATS defines six ways of limiting free market access.
These limitations include inter alia limitations on the number of service suppliers,
limitations on the value of transactions, service operations or employees in the sector.
These limitations may not be applied unless their use is clearly provided for in the
national schedule of commitments.
The WTO member may always accord better treatment in practice than that to which it has
committed itself in its national GATS schedule. However, the specific commitment, with any
particular conditions, qualifications or limitations inscribed in the national schedule, indicates
the lowest, or the worst permissible treatment that the WTO member concerned is required to
accord in regard to that service sector to foreign services and service suppliers.
As regards the principle of national treatment, i.e. equal treatment for foreign and domestic
services or service suppliers, this principle is applied differently than it is under the GATT
1994. In the GATS, this fundamental principle of non-discrimination applies only to those
service sectors specifically designated by a WTO member in its schedule and not horizontally
as in the GATT. Even when a WTO member decides to make specific commitments on
market access or national treatment for specific services sectors, such commitments may be
made subject to certain conditions, qualifications and limitations specified in its schedule.
Thus, the obligations of a WTO member on market access and national treatment in
particular, cannot be understood without reference to the specific commitments made in
relation to specific service sectors in that Member’s Schedule.
Services sectors and country coverage
The GATS covers in principle all services with two exceptions—i.e. services provided in the
exercise of governmental authority and, in the air transport sector, air traffic rights and all
services directly related to the exercise of traffic rights. The current classification of services
proposes a distinction of 12 main service sectors (and around 155 sub-sectors): business
services; communication services; construction and engineering services; distribution
services; education services; environmental services; financial services; health services;
tourism and travel services; recreational services, cultural, and sporting services; transport
services and "other services". Not all WTO members submitted an individual schedule of
commitments, i.e. at the time of the signature of the final act of the Uruguay Round on 15
April 1994, out of 123 countries participating in the round, only about 90 countries submitted
national schedules of specific commitments in services. However, all WTO members
acceding since 1995 submitted a list of services commitments and exemptions (not all of them
covering all sectors mentioned above). Even those WTO-members that did not make any
commitment in trade in services benefit by virtue of the MFN principle from the
commitments taken by the other WTO members.
GATS achievements and work program
The major achievement of GATS is that it is the only multilateral agreement on trade in
services which contains general rules applicable to all WTO members and individual
commitments of most WTO members in a considerable number of services sectors, describing
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the minimum legal guarantees given by those governments to foreign services suppliers. Next
to this important legal certainty for service suppliers, GATS increased transparency and
predictability of rules and regulations of its members in services trade as it contains
notification requirements of trade measures which, coupled with a regular review mechanism
of domestic trade policies and a dispute settlement mechanism provided for in the WTO exert
a certain disciplining effect on its members. It is however widely acknowledged that, while
the Uruguay negotiations succeeded in setting up the principle structure of the agreement, the
liberalising effects, i.e. the removal of barriers to trade in services have been relatively
modest. Trade in services is often restricted by regulations to ensure that the service supplied
is safe, of high quality and takes into account other core policy objectives (equity,
sustainability etc.). Indeed, the GATS expressly recognises the right of Members to regulate
the supply of services in pursuit of their own policy objectives, and does not seek to influence
these objectives. Rather, the Agreement establishes a framework of rules to ensure that
services regulations are administered in a reasonable, objective and impartial manner and do
not constitute unnecessary barriers to trade.
However, there are often quantitative or discriminatory barriers to trade that hamper trade in
services. Such quantitative restrictions to market access of foreign service suppliers are e.g.
limitations on the number of services suppliers, total value of services transactions or assets,
total number of services operations, the total quantity of services output, the total number of
persons that may be employed, as well as measures restricting or requiring specific types of
legal entity or joint ventures, and foreign equity limitations. Moreover, there are
discriminatory barriers that hamper trade in services such as discriminatory registration
requirements and licensing procedures, nationality and residency requirements, economic
needs tests and discriminatory treatment advantaging domestic companies over foreign ones.
Barring exceptions in financial and telecommunication services, most schedules have
remained confined at maximum to confirming status quo market conditions in a relatively
limited number of sectors. In many cases, the national schedules do not reflect the
autonomous level of liberalisation, i.e. the existing legislative barriers to trade, but are more
restricted. This may be explained in part by the relative novelty of the GATS and the
perceived need of Members to gather experience before considering wider and deeper
commitments. Moreover, many WTO members needed time to develop the necessary
regulation — including quality standards, licensing and qualification requirements — that
ensures that external liberalisation is compatible with, and conducive to, core policy
objectives (quality, equity, etc.) in socially or infrastructurally important services.
To ensure that the GATS would evolve continuously and WTO members would improve their
commitments, WTO members committed themselves to progressive liberalisation through
successive rounds of negotiations. In addition, taking into account that not all service-related
negotiations could be concluded within the time frame of the Uruguay round, GATS provides
for future negotiations concerning domestic regulation (e.g. licensing requirements and
procedures), emergency safeguard measures, government procurement, and subsidies. This is
the so-called GATS built-in agenda or its unfinished business.
2.2. The 9th round of multilateral trade negotiations: the Doha Development Agenda
More than fifteen years have passed since the GATS inception, and the economic importance
of services — in terms of production, income, employment and trade — has continued to rise.
Most WTO members have autonomously removed certain barriers to trade in services in
many services sectors (e.g. in postal and couriers services or telecommunication services) and
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thus there appears to be ample scope for new and/or improved commitments in new
negotiations.
New and/or improved commitments from all WTO members would be particularly important
for the EU as services constitute the single most dynamic economic activity in the EU,
accounting for almost three quarters of GDP in the EU and employment. EU companies are
leading providers of services in many sectors and are the biggest exporters of services
worldwide, with 26% of world total export of services and half of all foreign investment
flowing from the EU to other parts of the world. Legal security and new market access
opportunities are therefore crucial for European companies.
Following the conclusion of the Uruguay round of negotiations in 1994, a new round of
negotiations under the WTO started in 2001. The round was launched in Doha, Qatar, at the
4th WTO Ministerial Conference, where Ministers provided a mandate for negotiations on a
range of subjects and work in on-going WTO Committees. This round is called the "Doha
Round" (or Doha Development Agenda 'DDA' or 'Doha negotiations') and it focusses on the
following pillars: agriculture, non-agricultural market access, services, WTO rules (i.e., trade
remedies, fish subsidies, and regional trade agreements), development and trade facilitation.
All negotiations were carried out in parallel and were expected to be concluded at the same
time as a "single undertaking". In the services area, DDA had for ambition to update the
existing GATS market access commitments of the WTO members and to develop rules on
issues such as licencing requirements and procedures, government procurement on services,
etc. At EU-level, in 1999, in preparation of the Ministerial Conference of the WTO
concerning the upcoming DDA negotiations, the Council authorised the Commission to
negotiate a multilateral comprehensive trade agreement. Concerning trade in services, the
DDA mandate stipulates the following objectives:
"Negotiations should be comprehensive and bring about a deeper and broader package of
improved commitments from all WTO members to market access and national treatment.
Current imbalances in commitments across countries and service sectors should be reduced.
Negotiations should also aim at strengthening of GATS disciplines with the aim of ensuring
transparent and predictable regulatory environment. Any unfinished business (for instance,
safeguards, subsidies, government procurement) should also be absorbed in the negotiations.
Other aspects of the functioning of GATS which have been subject to inconclusive discussion
on interpretation or implementation could be reviewed. The participation of developing
countries should be facilitated by exploiting fully the opportunities offered by the GATS. For
the efficiency of the negotiations and in order to maximize the results while at the same time
ensuring coherence of commitments by sectors and by mode of supply, horizontal formulas,
when appropriate, should be considered as a useful tool for the negotiations. This would
apply across the board to sectors committed, except where expressly indicated." The Doha
mandate also stipulates that "(…) the Union will ensure, as in the Uruguay negotiations, that
the Community and its Member States maintain the possibility to preserve and develop their
capacity to define and implement their cultural and audiovisual policies for the purpose of
preserving their cultural diversity."
Therefore, for the EU the Doha negotiations should aim at bringing improved commitments
from WTO members on market access and national treatment in order to reduce the existing
imbalances in commitments across countries and service sectors. Also, GATS disciplines e.g.
on domestic regulation and transparency should have been further developed with the aim of
ensuring a transparent and predictable regulatory environment. Furthermore, any unfinished
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business related to the GATS built-in agenda of services should have been absorbed within
the negotiations. On the defensive side, the Doha mandate mentions that nothing in the
agreement should limit the Union's and Member States' ability to maintain and develop their
cultural and audiovisual policies.
The EU has played a leading role in promoting DDA services liberalisation. Although much
effort has been put into the negotiations under the DDA, the process came to a pause in July
2011, with all market access negotiations remaining blocked.
2.3. Way forward: Political guidelines issued by the 8th WTO Ministerial Conference in
Geneva ("MC8")
In order to overcome the stalemate of the Doha negotiations, at the 8th Ministerial Conference
of the WTO in December 2011, Ministers acknowledged the impasse and issued "elements for
political guidelines" providing for a commitment "(…) to advance negotiations, where
progress can be achieved, including focusing on the elements of the Doha Declaration that
allow Members to reach provisional or definitive agreements based on consensus earlier than
the full conclusion of the single undertaking.(…) Ministers recognise that Members need to
fully explore different negotiation approaches while respecting the principles of transparency
and inclusiveness." In that spirit, WTO members advanced negotiations in the area of trade
facilitation and certain other areas. Also, certain WTO members led by the USA and Australia
started floating the idea of a stand-alone agreement on trade in services to advance the DDA
negotiations amongst the willing WTO members.
2.4. The plurilateral initiative on trade in services
Following the political guidelines issued by MC 8, the USA and Australia, with the strong
support of their services industries, explored actively the idea of a "plurilateral" agreement on
trade in services with all those WTO members willing to engage in services liberalisation, the
so-called "Really Good Friends of Services" (‘RGFs’). This group is neither an exclusive nor
a stable group of WTO members, but an ad-hoc coalition of all those WTO members that
showed willingness to advance the services negotiations in the DDA.
Participants
The Really Good Friends comprise for the time being 22 WTO-members: Australia, Canada,
Chile, Chinese Taipei, Colombia, Costa Rica, Hong Kong China, the EU, Iceland, Israel,
Japan, the Republic of Korea, Mexico, New Zealand, Norway, Panama, Paraguay, Pakistan,
Peru, Switzerland, Turkey and the USA. This number might change in the course of the
negotiations.
Main elements of the future agreement
Really Good Friends share the understanding that any agreement would not simply be a multi-
country FTA, but a “second best alternative” for the paused DDA negotiations in the area of
trade in services. In terms of objectives, the future plurilateral trade in services agreement
should be based on the GATS, attract broad participation amongst WTO-members and should
be able to be multilateralised in the future. Indeed, by staying close to the GATS, it will be
easier to migrate the agreement back to GATS and the WTO system. Conceivably, this
possible later migration to the GATS might convince some of the leading emerging countries
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that were active in the DDA negotiations to participate in the plurilateral initiative or to join
the agreement at a later stage.
There was a common understanding that the agreement should be ambitious, comprehensive
in scope and commitments taken by Really Good Friends should reflect in principle as closely
as possible the autonomous level of liberalisation (i.e. binding the existing practice). Also, the
negotiation is aimed at providing for new or improved market access. Moreover, new and
enhanced disciplines should be elaborated on the basis of proposals brought forward by the
participants. Members of the Really Good Friends made suggestions to include such further
disciplines in the area of domestic regulation (e.g. authorisation and licensing procedures),
international maritime transport, Information- and Communication Technology (‘ICT’)
services (including cross-border data transfers), e-commerce, computer related services,
postal and courier services, financial services, temporary movement of natural persons,
government procurement of services, export subsidies and state-owned enterprises. This list is
based on expressed interest of individual Really Good Friends only. It is neither an exhaustive
list, nor does it mean that it was agreed that in all those sectors there will be new and
enhanced disciplines.
Architecture
In terms of architecture of the future agreement, convergence could be found that the
agreement would be based on the GATS, whereby some GATS core articles (inter alia on
definitions, scope, market access and national treatment, general and security exemptions)
would be incorporated. This would ensure a future possible integration of the agreement into
the GATS. There would be additional provisions to govern how each member of the Really
Good Friends could take commitments. In this respect, there was a common understanding
that commitments on market access should be taken as in the GATS, in a positive listing
approach. Concerning national treatment, this could be applied on a horizontal basis to all
services sectors and modes of supply. Exemptions to this horizontal application would have to
be listed in the countries' national schedule of commitments. Convergence could also be
reached that commitments would in principle reflect the actual practice ("standstill clause")
and that future elimination of discriminatory measures would be automatically locked (so-
called "ratchet clause") unless an exemption is listed.
Multilateralisation
Unlike in the DDA negotiations, the possible future agreement would for the time being fall
short of the participation of some of the leading emerging economies, notably Brazil, China,
India and the ASEAN countries. It is not desirable that all those countries would reap the
benefits of the possible future agreement without in turn having to contribute to it and to be
bound by its rules. Therefore, the automatic multilateralisation of the agreement based on the
MFN principle should be temporarily pushed back as long as there is no critical mass of WTO
members joining the agreement. Such a temporary push back can be achieved by ensuring
that the future agreement fulfils the conditions of an economic integration agreement as set
out in GATS Article V, i.e. the agreement should have substantial sectoral coverage, provide
for the absence or elimination of existing discriminatory measures and/or the prohibition of
new or more discriminatory measures. At the same time, Really Good Friends agreed to
include an accession clause for interested WTO members and to elaborate a pathway to the
multilateralisation of the agreement, i.e. the agreement should define the mechanisms and
conditions for subsequent multilateralisation.
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Way ahead
In March 2013, the Council authorised the Commission to open negotiations on a plurilateral
trade in services agreement. For these reasons, it has been decided to carry out a Trade
Sustainability Impact Assessment for the future negotiation between the EU and the WTO
members which are interested in this initiative.
2.5 Trade and economic relationship of the EU with the potential Parties to the agreement
Bilateral trade between the EU and the potential Parties
The group of countries potentially participating in the negotiations on the Trade in Services
Agreement for which data are available represent a very substantial share of EU exports and
imports of commercial services: 58% of EU exports and 59% of EU imports. The overall
average figures are however mostly determined by a sub-set of countries as the USA,
Switzerland, Japan, Norway, Australia and Canada alone represent almost 50% of both EU
exports and EU imports. With the majority of these countries the EU has already signed, is
negotiating or is starting to negotiate ambitious bilateral agreements that include both goods
and services liberalisation that will presumably lead to a deeper level of economic integration
in the area of trade in services than the plurilateral services agreement.
However, there is also a group of countries with which either the EU has agreements where
services commitments could be deepened (e.g. Mexico and Chile) or has no FTA including a
services chapter (Australia, New Zealand, Pakistan, Switzerland1, Paraguay, Taiwan and
Turkey). These countries together represent at least 22% of EU exports and more than 20% of
EU imports of commercial services, which amount to 123 and 90 billion Euros respectively. It
is noted that the EU is also an important trading partner for these countries. This is not only
the case for smaller countries, but the EU27 represents e.g. for the US 32% of its export and
34% of its imports of commercial services.
Membership in the World Trade Organisation (WTO)
All potential Parties to the Trade in Services Agreement are WTO members and all Parties
have taken commitments under the GATS.
Existing bilateral agreements:
The EU has bilateral agreements including a services chapter in force with the following RGF
countries:
1. Norway
2. Iceland
3. Mexico
4. South Korea
1 It is noted that there is a sectoral EU-Swiss agreement concerning parts of insurance services: “Agreement
between the European Economic Community and the Swiss Confederation concerning direct insurance other
than the life insurance”, OJ L 205, 27/07/1991, p. 3.
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Further information can be found on the homepage of DG Trade:
http://ec.europa.eu/trade/creating-opportunities/bilateral-relations/agreements/#_europe
Bilateral agreements are concluded and will be entering into force in the near future with the
following RGF countries:
1. Columbia and Peru, see http://ec.europa.eu/trade/creating-opportunities/bilateral-
relations/regions/andean/
2. Panama and Costa Rica (Central America), see http://ec.europa.eu/trade/creating-
opportunities/bilateral-relations/regions/central-america/
Further information and more detailed data can also be found on the following links:
http://ec.europa.eu/trade/statistics
2.2 Trade Sustainability Impact Assessment (Trade SIA)
The EU is committed to conducting Trade Sustainability Impact Assessments (Trade SIAs) as
part of its trade policy-making process. Since 1999, the EU has conducted a Trade SIA for all
its major trade negotiations.
Trade SIAs assess the potential economic, social and environmental impacts of proposed
trade liberalisation on the EU and other relevant countries in order to help optimise the
decisions and choices made about policy.
Trade SIAs are based upon causal chain analysis that identifies the significant cause-effect
links between a proposed change in trade policy and its economic, social, and environmental
impacts. To the extent possible, the analysis should: combine both quantitative and
qualitative approaches; use sustainability indicators; and be based on the principle of
proportionate analysis.
The analysis should focus on the core indicators identified in the Handbook for Trade SIA2;
additionally (where data are available), indicators used in the assessment should cover aspects
of quality in work3, decent work
4 and respect for human and fundamental rights
5. The study
2 See the Handbook for Trade Sustainability Impact Assessment, especially §3.4.2 and §5.5.
3 For an explanation of the concept and underlying indicators, see Commission Communication of 20/06/2001
Employment and social policies: a framework for investing in quality (COM (2001) 313 final).
4 For an explanation of the concept, see
http://www.ilo.org/global/About the ILO/Mainpillars/WhatisDecentWork/lang--en/index htm
5 As defined in the Charter of Fundamental Rights of the European Union, and in the following core UN human
rights treaties: International Convention on the Elimination of All Forms of Racial Discrimination (ICERD);
International Covenant on Economic, Social, and Cultural Rights (ICESCR); International Covenant on
Civil and Political Rights (ICCPR); Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT); Convention on the Rights of the Child (CRC); International Convention on the Rights of
Persons with Disabilities (ICRPD); and International Convention for the Protection of All Persons from
Enforced Disappearance (ICPED).
14
should serve as a contribution to the Commission's dialogue with stakeholders6 and trading
partners.
Trade SIAs consist of two complementary components of equal importance:
(i) Economic, environmental and social assessments as such, using analytical tools,
modelling techniques and rational causal chain analysis. This component should be
undertaken in a clear, scientific and objective manner;
(ii) A consultation process involving trading partners and stakeholders that provides
genuine consultation and opportunities for information gathering and dissemination of
results.
The two components – assessments and consultation – are mutually dependent, and of equal
importance for proper implementation of Trade SIAs.
For each completed Trade SIA, the European Commission prepares a position paper based on
the findings of the Trade SIA final report. The position paper identifies points of agreement
and responds to disagreements. It considers what further analysis should be undertaken, and
what policy actions should be implemented. Relevant flanking measures are identified, and
these may include (e.g.) capacity-building and trade-related assistance initiatives,
international regulation, or the use of trade and regional policy instruments within the EU.
The position paper is discussed with Member States at the relevant trade committee.
General information and reports on the Trade SIAs either completed or in progress is
available on DG Trade's website:
http://ec.europa.eu/trade/analysis/sustainability-impact-assessments/assessments/
3. OBJECTIVES OF THE PROJECT
The Trade SIA in support of negotiations on a Trade in Services Agreement should be carried
out during the trade negotiations. It should be completed within one year.
It should assess how the trade provisions under negotiation could affect economic, social,
environmental and human rights issues in the EU, in selected countries amongst the partners
to the agreement and on a selected number of third countries, including developing countries
and least developed countries (LDCs)7. This analysis should always cover two scenarios: one
scenario that presumes the agreement will be concluded between the current Really Good
6 Taking into account the provisions of §3.3 and §5.4 of the Handbook for Trade Sustainability Impact
Assessment.
7 The selection of countries in the Really Good Friends group and third countries should be done in close
consultation with DG Trade which will have to agree on the final choice.
15
Friends8 and another one that would suppose China
9 and selected members of ASEAN
10
joining the agreement.
Furthermore, it should highlight elements which might be considered by the Commission
during the negotiations in order to in general, maximise the overall benefits of the agreement
and prevent or minimise potential negative impacts. This assessment is necessary to enable
the EU to pursue an approach which brings the greatest overall welfare gains. Assessing the
impacts of trade in services liberalisation, and anticipating transitional economic and social
changes within the EU28, in selected members of the RGFs and other relevant countries, is
also necessary in order to set up the right accompanying policies at regional, territorial,
national and EU level, so as to maintain and improve global competitiveness of services
suppliers and ensure support for the necessary labour market and social adjustment.
4. SERVICES TO BE RENDERED
4.1 Overall analysis of the sustainability impacts arising from the negotiations of a
plurilateral agreement on trade in services
As mentioned above, the purpose of the Trade SIA for the Trade in Services Agreement is to
assess how the trade provisions under negotiation could affect economic, social,
environmental and human rights issues in the EU, in selected countries amongst the partners
to the agreement and on a selected number of third countries, including developing countries
and least developed countries (LDCs)11
. This analysis should always cover two scenarios: one
scenario that presumes the agreement will be concluded between the current Really Good
Friends and another one that would suppose China and selected members of ASEAN12
joining
the agreement.
The Contractor shall look into alternative and complementary methodological approaches, to
arrive at an assessment of the potential effects of the agreement. The Contractor shall review
the results of comparable studies.
The quantitative and qualitative impact analysis should be supported with statistical data, and
corresponding data sources should be quoted together with the relevant references in the
literature. Any reports submitted by the Contractor should be accompanied by the original
8 To-date: Australia, Canada, Chile, Chinese Taipei, Colombia, Costa Rica, Hong Kong China, the EU,
Iceland, Israel, Japan, the Republic of Korea, Mexico, New Zealand, Norway, Panama, Paraguay, Pakistan,
Peru, Switzerland, Turkey and the USA.
9 Considering the current interests, it is unlikely that any other of the leading emerging economies would join
the negotiations for the time being.
10 This could be e.g. Vietnam, Malaysia and Thailand. The selection of countries has to be done in close
consultation with DG Trade which will have to agree to the final choice.
11 The selection of countries in the Really Good Friends group and third countries should be done in close
consultation with DG Trade which will have to agree on the final choice.
12 This could be e.g. Vietnam, Malaysia and Thailand. The selection of countries has to be done in close
consultation with DG Trade which will have to agree to the final choice.
16
statistical databases, codes files, and other data inputs that formed the basis for the analysis
and that would be needed to replicate any quantitative result.
4.1.1 Economic analysis
The Commission considers that the economic analysis shall be carried out using
computable general equilibrium (CGE) techniques.
a) Modelling approach and baselines
The Trade SIA will first require the definition of a baseline outlining what are the likely
economic, social and environmental developments in the absence of the Trade in Services
Agreement. This is meant to quantify the main parameters of the "status quo" situation,
against which the potential liberalization outcomes should be assessed. The baseline will
need to be carefully described and discussed.
The baseline will stand upon original modelling, cover trade in both goods and services
and be based on up-to-date data (up to 2012) and projections up to a reasonable
timeframe.
The baseline has to take into account the existing commitments made by the EU and its
RGF partners both in the multilateral and in the bilateral context such as for example the
agreements that have already been signed and/or initialled (EU-South Korea FTA, EU-
Mexico, EU-Chile, EU Colombia and Peru, EU-Central America), but also the main
agreements between third parties.13
b) Quantification of current trade costs
In order to simulate the impact of the agreement, the contractor will first need to quantify
the trade costs related to the services non-tariff measures (NTMs) and regulations for
each sector/industry with econometric techniques and using trade flows. These estimates
shall also make use of newly available quantitative information on the inventory of
services sector restrictiveness as published by the World Bank, the OECD Foreign Direct
investments Regulatory Restrictiveness index (for mode 3) and, when available, the
OECD Services Trade Restrictiveness Index.14
The Contractor is invited to carefully
describe the methodological approach used for this quantification.
c) Quantification of the trade cost reduction equivalent of binding autonomous levels
of liberalisation
13
The final list of agreements to be considered in the baseline will be defined in consultation with the
Commission later in the process.
14 http://iresearch.worldbank.org/servicestrade/home.htm; http://www.oecd.org/investment/fdiindex.htm and
the OECD STRI when published www.oecd.org/trade/stri
17
Central element of this analysis is the quantification of the trade cost reduction equivalent
that can be associated to the legal binding of the autonomous level of liberalisation
(below GATS commitments).
By binding the existing level of liberalisation, countries commit themselves not to raise
the existing applied levels of restrictions to the levels agreed in GATS. In the aftermath
of the recent economic crisis many countries have been introducing new protectionist
measures in goods and services trade. Within this context, the legal binding of
autonomous liberalisation will assume an important economic insurance value reducing
the policy and legal uncertainty. Such uncertainty has a real option value for firms and
economic agents that often choose to wait to enter foreign market and/or make
investments until more information become available and the uncertainty is sufficiently
low. In the case of services, given the high fixed costs involved (investments in the case
of Mode 3 but also the common tailoring of the product to the costumers) the resolution
of the policy uncertainty becomes all the more valuable.
Therefore, with reference to the literature on trade policy uncertainty that has been
recently developing,15
the contractors shall summarise the findings of this literature and
consequently develop an empirical methodology to quantify for each country and sector
the economic value of the reduction of such uncertainty (using country and sectoral level
data).
Such methodology shall be based on a stochastic modelling of the uncertainty element
which would also depend both on the “policy space” meaning the difference between
applied and bound levels of restrictions and the likelihood of countries to become more
protectionist, rising applied restrictions to the GATS commitments’ levels.
Information on the applied level of restriction in services for some of the countries
participating in the plurilateral negotiations and for some sectors can be found in the
World Bank STRI database16
while for the bound level of restrictions the reference
should be the GATS commitments17
.
The results of this section shall be included in the inception report and will be discussed
with the Commission before being applied to define the simulation scenario of the
outcome of the agreement.
d) Quantification of the impact of the Trade in Services Agreement
15
A starting point can be “Handley, K., (2011) “Exporting Under Trade Policy Uncertainty: Theory and
Evidence”, WTO Staff Working Paper ERSD-2011-20, and also Handley,K. and Limao, N (2011) “Trade and
Investment under Policy Uncertainty: Theory and Firm Evidence”, NBERWP no. 17790 but more paper on the
same topic are currently being written. 16
http://iresearch.worldbank.org/servicestrade/home htm
17 Relevant GATS commitments can be found on the WTO homepage:
https://www.wto.org/english/tratop_e/serv_e/serv_commitments_e htm
18
The final step of the analysis will then be the quantification of the impact of the
agreement for each of the two scenarios described above relative to the baseline.
The Contractor will ensure that the main findings of the Trade SIA are based on robust
economic analysis and informative regarding the magnitude of its economic, social and
environmental impacts. Importantly, the trade SIA must contain an assessment of the
wider economic impact with quantification of possible effects on trade, output, welfare,
including wages and employment from the agreement. The impact of the agreement
should be presented as net changes compared to the baseline. The results should be
detailed by sector/industry and although the agreement would only cover the services
sectors, also the impact on goods trade should be taken into account and presented. Given
the strong inter-linkages between goods and services a liberalisation of the services trade
is expected to have an impact also on the goods trade.
If the Contractors wish to suggest alternative methodologies than CGE these need to be
discussed with the Commission together with ways to assess the robustness of results.
The scenario for one potential outcome of negotiations will be the binding of the
autonomous level of liberalisation in all services sectors, but potentially the negotiations
could also lead to additional market access. The concrete specification of the
liberalisation scenarios18
is to be defined by the Contractor in close cooperation with the
Commission during the drafting of the inception report.
e) Assessment of the impact of the improvements in regulatory environment.
In addition, the contractors shall also discuss the impact on trade, production of services
and employment in the countries considered in each of the two scenarios. The
Commission services will provide details on the specific regulatory aspects that will need
to be considered. In case a quantitative assessment of the trade cost reduction equivalent
of regulatory improvement is available, the contractors should also add these reductions
when designing the liberalisation scenarios.
(1) Social analysis
The Trade SIA shall analyse, for each of the two scenarios, the employment and wage
effects of a such a Trade in Services Agreement. For changes in both employment and
wage level, this should be done for the whole economy as well as by sector (see 4.1.1.d).
As part of the overall assessment of social impacts, the Contractor shall take into account
the interaction between the potential trade agreement and the effective implementation of
ILO Core Labour Standards (CLS) as well as the promotion of the ILO Decent Work
Agenda (job creation, rights at work, social protection and social dialogue) in the trade
partners under consideration. The Contractor should analyse what the employment and
18
A conservative one with binding of autonomous liberalisation and an ambitious one with binding and market
access.
19
decent work impacts of services liberalisation might be, and how these impacts might be
measured or quantified (including reference to decent work indicators, ILO sources and
information on labour standards). In addition, impacts of the future agreement on equality
(as a cross-cutting issue of the Decent Work Agenda) should be analysed. The overall
assessment of social impacts should be summarised separately in a specific section of the
report, and in the executive summary.
The Contractor should also take into account the potential impact of the proposed
agreement on human rights issues, (as set out in the Charter of Fundamental Rights of the
European Union and in the core UN human rights treaties listed above at footnote 5). The
consultant should in particular: identify the specific human rights liable to be affected by
particular measures included in the proposed agreement; analyse the extent to which the
particular measures may enhance or impair the enjoyment of the relevant rights, and/or
may strengthen or weaken the ability of the partner countries to fulfil or progressively
realize their human rights obligations19
.
The analysis of potential impacts on human rights will normally be included as part of the
overall assessment of social impacts. However, if the findings are considered significant,
they should be summarised separately in a specific chapter in the report, and in the
executive summary.
(2) Environmental analysis
The Contractor shall carry out a detailed analysis of different types of external
environmental impacts of the plurilateral services agreement under each of the two
scenarios. This analysis should be proportionate and be more in-depth for issues that are
most important, which may not be the issues for which data is most readily available.
This will include the impact of liberalisation of trade in services as well as the impact of
the liberalisation of environmental services on climate change, in particular on the most
important types of greenhouse gas (GHG) emissions in the two scenarios. For this
purpose, the Contractor should compute the change in the emissions of GHG derived
from the liberalisation of trade in services. This could be done by using different tolls
such as CGE models. In addition, the Contractor should decompose the impact of
liberalisation of trade in services into scale, structural, technology and product effects.
Scale effects refer to environmental impacts by trade-induced economic growth (e.g.
increased resources for environmental protection, impacts on biodiversity); structural
effects refer to changes in production or consumption patterns at the microeconomic level
(e.g. changes in cost of raw materials or cost of labour); technology effects are those
impacting the processes or production methods used in product supply (e.g. potential for
facilitated access to environmental technologies); product effects refer to the changes in
the use of specific goods and services following liberalisation20
. Different decomposition
techniques such as Structural Decomposition Analysis could be used. Complementary
approaches, including but not limited to a global value chain approach are welcome.
19
The contractor may refer in particular to Human Rights Indicators: A Guide to Measurement and
Implementation (OCHCR, 2012); as well as to the Commission staff working paper Operational Guidance
on Fundamental Rights in Commission Impact Assessments (SEC(2011) 567 final, 06.05.2011 (available at:
http://ec.europa.eu/justice/fundamental-rights/files/operational-guidance en.pdf)).
20 Mayrand & Paquin (2007), p.21; http://unisfera.org/IMG/pdf/Unisfera_-
_EAs_of_Services_Trade_Liberalisation_-_Literature_Review_19_April_2007.pdf
20
The Contractor shall also analyse the impact of a plurilateral services agreement on
environmental services. Those include environmental protection services as well as
resource management services21
. In this context, the Contractor can focus on selected
sectors such as water supply and waste water treatment, solid-waste management,
hazardous-waste management and air pollution control – services for which information
is most readily available22
. The Contractor may upon agreement with the Commission use
a different sector classification.
The Contractor should also explore the complementarity between trade in environmental
services and trade in environmental goods. This is particularly relevant in those cases
where trade in environmental goods already faces low or zero tariffs, since studies point
to the fact that potential benefits of liberalisation in environmental goods are only fully
realised when going together with liberalisation in environmental services23
.
The Contractor should take into account the interaction between the potential plurilateral
services agreement and relevant multilateral environmental agreements (MEA). The
Contractor will also assess the impact on emission of other air pollutants, water
pollutants, including in the agricultural context, on waste management and nature
protection. Concrete indicators for assessing these impacts should be suggested and
explained in their value for the overall environmental analysis. The final approach to be
followed is to be defined by the Contractor in cooperation with the Commission.
The report should also identify how the agreement could contribute to greening economy
and resource efficiency objectives.
4.2. Sectoral Trade SIA for the plurilateral Trade in Services Agreement: detailed
analysis of specific sectors
Based on the overall assessment mentioned in point 4.1, the Contractor will carry out a
detailed Trade SIA analysis on a list of sectors to be finalized in coordination with the
Commission at the latest at the submission of the draft interim report.
(1) General Approach
The sectoral work will include quantitative analysis informed by modelling as well as
qualitative assessments of the impacts of potential outcomes in the sectors concerned.
The sectoral analysis will include an assessment of the economic, environmental and
social impact of the possible results of negotiations as well as cross-sectoral effects
according to the liberalisation scenario mentioned above. Regarding the social effects,
attention shall be paid to employment, poverty, wage and decent work effects of trade
liberalisation. The environmental impact of an increase of transportation services should
be examined. As indicated above, key impacts on third countries, including developing
countries and in particular least developed countries (LDCs) should also be considered.
This analysis should also identify specific sectors, products, vulnerable social groups and
21
EUROSTAT (2009), p.30: http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-RA-09-012/EN/KS-RA-
09-012-EN.PDF
22 Kennett & Steenblik (2005), p.19: http://www.cbd.int/doc/external/oecd/oecd-environment-gs-2005-en.pdf
23 Steenblik, Drouet & Stubbs (2005), p.23: http://www.iadb.org/intal/intalcdi/PE/2007/00113.pdf
21
geographical areas that are most likely to be affected, either positively or negatively, by
the outcome of the negotiations.
Particular attention shall be given to non-tariff measures and behind the border measures
affecting trade and investment, as well as the impact of a plurilateral Trade in Services
Agreement on SMEs engaged in services production and trade, namely in terms of effects
in productivity, SME exports, knowledge spill-overs and innovation by incumbents24
. In
addition, the contractor shall identify in which sectors SMEs would gain competitive
advantages thanks to the future agreement.
2) Preliminary sector selection
Below are suggestions for such sectors, to be verified in the course of the inception phase
by the Contractor, and to be amended/changed as appropriate after the first analysis in
coordination with the Commission (at least 5 sectors will need to be analysed). Sectors
should be selected taking into account a set of criteria, among which the following will be
considered: export potential, contribution to GDP, employment changes, existence of
traditional industries in the region, priority sectors for the negotiations of agreements on
conformity assessment.
Sector suggestions:
Financial services: The analysis will depict the current situation of these sectors in
the EU and in other selected RGFs, identify potential for development of these
services sectors, the potential for increased trade and highlight the potential impact on
the development of the economies. As the mentioned services comprise a number of
sub-sectors, the Contractor may wish to propose to cover a limited subset of financial
sectors and if so, justify its choice for sub-sectoral coverage based upon relevance to
the EU context.
Transport services: The analysis will depict the current situation of these sectors in
the EU and in other selected RGFs, identify potential for development of these
services sectors, the potential for increased trade and highlight the potential impact on
the development of the economies. As the mentioned services comprise a number of
sub-sectors, the Contractor may wish to propose to cover a limited subset of transport
sectors and if so, justify its choice for sub-sectoral coverage based upon relevance to
the EU context.
ICT and computer related services: The analysis will depict the current situation of
these sectors in the EU and in other selected RGFs, identify potential for development
of these services sectors, the potential for increased trade and highlight the potential
impact on the development of the economies.
E-commerce: The analysis will depict the current situation of those sectors in
selected countries of the RGFs and in the EU. As the mentioned sector comprises a
number of sub-sectors, the Contractor may wish to propose to cover a limited subset
of sectors and if so, justify its choice for sub-sectoral coverage based upon relevance
to the EU context.
24
Kox & Lejour (2006), p.20: http://vnk.fi/hankkeet/talousneuvosto/tyo-kokoukset/globalisaatioselvitys-9-
2006/artikkelit/Kox & Lejour 06-09-20.pdf
22
4.3 Proposals for policy recommendations and accompanying measures
The Contractor should present proposals for policy recommendations covering
enhancement and prevention/mitigation measures: ie, measures needed to reinforce any
significant positive sustainability impacts, and to prevent or at least mitigate any negative
sustainability impacts.
Recommendations should be presented both: in terms of the EU’s negotiating positions
(i.e., directly related to provisions to be included in the agreement, e.g., in relation to
trade policy vis-à-vis economically, socially, environmentally sensitive sectors and
relevant human rights issues, if applicable); and in terms of non-trade-related
(accompanying) measures. They may suggest priorities to be given to any specific
sectors and specific actions on horizontal issues. The Contractor shall consult the
Steering Committee on draft recommendations prior to their finalisation.
4.4 Consultation process
The Contractor is requested to complement its quantitative and qualitative analysis with
inputs from stakeholders. Consultation is a central part of the work of a Trade SIA, and
should start at an early stage of the process.
The objectives of the consultation process are:
- to actively engage with key EU stakeholders in business, national administrations
and within civil society, including social partners (trade unions and employers’
organisations). Stakeholders’ input and consultation – which should include all
relevant players (taking into account the specific topics covered by this Trade SIA –
are important for ensuring the quality, credibility and legitimacy of the Trade SIA
process. The Contractor will be asked to ensure timely and targeted consultation
activities;
- to contribute to the identification of the sectors which the SIA should analyse in
more details;
- to contribute to the identification of priority areas and key issues in the negotiation
by providing the opportunity for input from representatives of national, regional,
local authorities, civil society organisations, including social partners, individual
citizens, academics and technical experts.
The SIA Contractors should consult early and systematically with DG Trade, on their
stakeholder consultation plan. The consultation plan should include:
• An outline of the proposed stakeholder consultation process, including identification of
key stakeholders (both national and sectoral bodies).
In particular, the activities required as part of the consultation process are:
4.4.1 Interviews, meetings, and where appropriate questionnaires with relevant
stakeholders in relevant administrations, business and civil society
23
The Contractor will consult - by means of interviews, meetings, or questionnaires - key
stakeholders from public sector, private sector and civil society.
The Contractor will ensure adequate and balanced coverage of all interested parties in
their consultation process, and that contributions received are integrated in the report.
The Contractor is encouraged to undertake one-on-one meetings, particularly at an
inter-professional level. The Contractor should also identify existing platforms for
dialogue that they could use to improve communication with stakeholders.
The Contractor will carry out one questionnaire open to all stakeholders.
The Contractors should consult with the Commission, the European Economic and
Social Committee and, via the Commission, the Social Dialogue Committees to
determine whether there are existing conferences or meetings that they could attend.
In order to complete the analysis on SMEs, the Contractor may use a SME panel
questionnaire. Concretely a questionnaire is designed by the contractor, then approved
by DG TRADE and eventually channelled by DG ENTR to the SME panel.
4.4.2 Development by the Contractor of a dedicated website for the Trade SIA
The dedicated Trade SIA website will provide an essential channel for publicising the
Trade SIA, for communicating information about it, and for disseminating its results. It
should be designed to facilitate consultation of stakeholders, and should include a
specific feedback mechanism. It will enable interested parties to provide input and set
up a discussion forum to further stimulate the involvement of civil society on the basis
of issue papers and reports made available online.
The Trade SIA dedicated website should be created no later than the date of the
inception report, and will remain active two years after the date of approval of the final
report.
4.4.3 Information of stakeholders in the participating countries
The consultant should establish a list of relevant stakeholders in the possible parties to
the agreement on the basis of information received from DG Trade and other sources
which may be available. The contractor should contact those stakeholders by e-mail
and/or electronic newsletter informing them about the SIA and inviting them to provide
contributions via e-mail or other tools available via the established website.
4.4.4 Electronic documentation
All reports, public meeting reports and outputs approved by the Commission including
the regular updates, the list of consultant networks and publication/documentation
sources will be published on the Trade SIA website.
24
Furthermore, the Contractor will be asked to provide feedback for all stakeholders'
contributions. The Contactor should analyse and publish the inputs received and, if
relevant, integrate them in the studies. An indication of the number of hits should be
provided. A link to the web pages of the main stakeholders involved in the process
should be included in the dedicated Trade SIA website.
4.4.5 Meetings with the Commission
The Contractor will be required throughout the process to attend meetings with
Commission officials, including meetings with the SIA Steering Committee. These
meetings will include: presentations and explanations by the Contractor of work
completed up to the date of the meeting, including reports on progress and results of
modelling; further information provided by the Commission on (inter alia) negotiating
developments; and discussions on future work and on the specific sectors to be
assessed. If required, the Contractor should also make available the databases,
modelling tools and other quantitative elements which form the basis of the analysis, in
order to enable verification of results by the Commission. The Contractor will be asked
to draft detailed minutes of each of these meetings.
Four meetings should be foreseen in the context of the Trade SIA contract including a
kick-off meeting to be organised between Commission representatives and the
Contractor immediately after signing the contract.
4.4.6 Public meetings
The Contractor will be required to participate in public meetings organised by the
Commission involving representatives of the Member States, the European Parliament
and civil society. The Contractor will present and explain work completed and enable
interested stakeholders to provide direct input. The Contractor will be asked to draft a
complete record of each of these meetings.
Two meetings in Brussels should be foreseen in the context of the Trade SIA contract:
A first meeting after the submission of the draft inception report
A second meeting after the submission of the draft final report, including the
comments from the Commission.
Executive summaries of the reports are expected to be sent to external stakeholders at
least one week before the public meetings.
5 . ORGANISATION OF WORK
5.1 Team Management
The length and scope of the Trade SIA in general require a strong management
structure, which includes an excellent overall project co-ordinator.
The management structure will therefore need to be designed carefully to be able to
oversee the whole project, to co-ordinate the relationship between the Contractor and
the European Commission, and to ensure that the timetable and milestones of the
project are met. Tenderers must clearly and in detail describe the proposed management
structure in the tender.
25
5.2 Expertise of the team
The Contractor must clearly outline in the tender the description of the proposed
management structure for the study, and the description of the proposed team of experts,
fulfilling criteria specified under point 14 Selection Criteria.
5.3 Steering Committee
The Commission will appoint a steering committee that will deal with the project
already prior to the launch of this Trade SIA, to ensure a smooth implementation of the
study activities. In order to discuss the general approach, planning, and the content of
the draft inception, interim and final report, it will be composed of officials of DG
Trade and of other Directorates General and Services of the European Commission.
Four meetings of the steering committee (to be held in Brussels) are envisaged. The
first meeting (the "kick-off" meeting) should take place immediately after signature of
the Trade SIA contract. The other three meetings will provide an opportunity for the
Contractor to present each of the reports to the steering committee. The Commission
shall provide the premises.
Other meetings may be organised through teleconferences as appropriate, or on an ad-
hoc basis (see point 4.4.4).
The Steering Committee is expected as a minimum to contribute to the following:
facilitating the Contractor's access to the information required to perform the work;
validating the final specification of the liberalisation scenarios (see §4.1.1);
supporting and monitoring the Contractor's work (including participation in the kick-
off meeting, and participation in meetings where the Contractor presents the
inception, interim technical, and final reports);
reviewing and commenting upon the content, quality, accuracy, and reliability of the
reports delivered by the Contractor;
reviewing the recommendations made in the Trade SIA, and assisting with
preparation of the Commission's response (i.e. the position paper – see §2.2).
6. DELIVERABLES AND CONTENT
The Contractor must produce three self-standing reports as described below; and each must
include all explanations, analytic concepts, assumptions, and contextual information
necessary for a full understanding of the work performed, the evidence gathered, the
judgements reached and the recommendations made.
Inception Report
The inception report shall describe how the work will be carried out by including at least the
following:
26
An overview of the Contractor’s proposed approach to the study, including a
presentation of the conceptual framework of the sustainability assessment analysis.
A description of preliminary methodological developments.
An account of initial contacts made with the Steering Committee, and of the directions
and advice received, particularly in respect of consultation with stakeholders.
A list of the relevant stakeholders for this study.
A consultation plan that meets the specification in §4.4, including an explanation of
how it will be implemented, and of how the active engagement of stakeholders will be
ensured.
A review of the literature, list of tools and references to be used.
A preliminary screening exercise for the key sustainability issues (including human
rights) associated with the trade agreement, based on quantitative and qualitative
analysis.
A preliminary overview of the overall and sectoral analysis, and identification and
definition of indicators relevant for this study, justifying the choice and how the
information is to be collected.
Outlines of the expected content for both the interim technical and final reports.
The draft inception report must be presented to the Steering Committee and to civil society
representatives in Brussels, and relevant comments should be taken into account.
The final inception report should not exceed 100 pages, including the executive summary.
Interim Technical Report
The interim technical report shall summarise the work undertaken up to the date of the report,
and the main results obtained. In particular, it should describe:
Implementation of the methodology: a summary of the process by which the Trade
SIA methodology has been implemented. Information on communication activities,
including:
o The development and implementation of the stakeholder consultation plan.
o Consultations and dialogue with external experts from civil society, social
partners and other targeted consultation: summary of comments and
suggestions received (via e-mail, website comment function, ordinary mail,
meetings etc.) and the uses made of these.
o Development of the network of Trade SIA experts: contacts undertaken,
information supplied and comments received.
o Overview of the use made of the website for the Trade SIA.
27
Progress briefing on the Trade SIA and work in progress, including preliminary
outcomes on the overall and sectoral analysis.
Roadmap for the work necessary to complete the final report
The draft interim technical report must be presented to the Steering Committee. The final
interim technical report should have no more than 200 pages (including the executive
summary) plus annexes.
Final Report
The final report must contain the following elements:
Description of the methodology adopted for the Trade SIA
The outcomes and results of the assessment
Proposals of flanking measures and policy recommendations
Details of communication activities including:
o Outline of contacts with stakeholders (including social partners and other
targeted consultation) in the EU with an indication how their views have
been taken into account by the study team;
o Outline of contacts with stakeholders (including social partners and other
targeted consultation) in trade partners (as well as in other countries if
relevant) with an indication how their views have been taken into account
by the study team;
o Minutes of the public meetings with civil society held in Brussels outlining
key stakeholder positions and points of views with an indication how their
views have been taken into account by the study team, the programmes and
list of participants.
Conclusions, including recommendations and flanking measures.
References and key sources.
It must include specific identifiers which should be incorporated on the cover page, provided
by the Commission.
A separate briefing document of no more than two pages should accompany the final report.
This should summarise, in very succinct form:
o the objectives, scope and purpose of the Trade SIA;
o the main trade measures identified for impact analysis;
o the liberalisation scenarios considered;
o other key assumptions and hypotheses;
28
o the most significant economic, social, environmental and human rights
impacts identified;
o the most important complementary policy measures recommended in order
to minimise negative impacts and maximise positive impacts of the trade
measures proposed;
o the sources of evidence, and the qualitative and quantitative evidence-
gathering techniques used;
o details of the consultation process undertaken for the Trade SIA;
o limitations in the design or the execution of the Trade SIA in meeting the
project aims and objectives;
o suggestions (where relevant) of issues or aspects for further investigation,
including ex post analysis of the impacts of any agreement reached at the
conclusion of negotiations.
The draft final report must be presented to the Steering Committee and to civil society
representatives in Brussels no later than one year after signature of the contract. Relevant
comments should be taken into account while finalising the draft.
The final report should have no more than 200 pages, including an abstract of no more than
200 words and, as separate document, an executive summary of maximum 6 pages, in both
EN and FR.
General rules regarding documents and reports
All reports must bear the following statement on the inside title page:
"This report was commissioned and financed by the European Commission. The
information and views set out in this report are those of the author(s) and do not
necessarily reflect the official opinion of the Commission. The Commission does not
guarantee the accuracy of the data included in this study. Neither the Commission nor
any person acting on the Commission’s behalf may be held responsible for the use which
may be made of the information contained therein.”
As specified in section I.4 of the service contract (Annex 3), for each report, the Contractor
must first send a draft to the Commission. The Commission will either inform the
Contractor that it accepts the draft, or will send the Contractor its comments. The
Contractor should then submit additional information or a finalised report to the
Commission.
Reports should be drafted in such a way as to be accessible to trade and non-trade
specialists alike, and should provide a concise and clear executive summary of the
findings.
All reports, recommendations and files prepared by the Contractor under the
contract must be in English.
29
Initial drafts shall be transmitted as electronic documents only, in both PDF and
Word-compatible25
formats.
Final (approved) versions of reports shall be submitted in PDF and Word-
compatible format, together with two hard copies and relevant invoices.
Reports in English shall be accompanied by the original statistical databases, model
files, and other data inputs that formed the basis for the analysis carried out in the
approved reports.
Quality assessment criteria of final report
The quality of the final report will be assessed using the quality assessment framework
presented in Annex 4.
7. TIMING
Trade SIA findings must be available well in advance of the end of the underlying
negotiation, and sufficiently early to be capable of informing decision-making relating
the proposed agreement.
The duration of the tasks for this project should not exceed one year, and the contract will
be awarded for that length of time. The period of execution of the tasks may be extended,
but only with the written agreement of the parties concerned before such period elapses.
The expected timeline is as follows:
Deliverables Month
1 Draft Inception Report + presentation to civil
society in Brussels
3
1 Draft Interim Technical Report
7
1 Draft Final Report + presentation to civil society
in Brussels
12
Tenderers must propose an indicative calendar for the work programme and reports
included in the terms of reference. It is the Contractor's obligation to observe the
implementation of the agreed timeframe, taking into account the time necessary for
consultation with the Commission and with civil society.
The Steering Committee's meetings in presence of the Contractor are supposed to take
place according to the following timelines:
2 weeks after the reception of the draft inception report
3 weeks after the reception of the draft interim technical report
3 weeks after the reception of the draft final report.
25
Note that Word-compatible documents should be saved as 1997-2003 version files.
30
8. BUDGET
The budget of the contract, including all costs is estimated not to exceed Euro 300,000
for its total duration.
The tenderer should however be aware that the contract award criteria are based on the
most economically advantageous tender.
The price offer of the tender must be complete. The tenderer must not include in the
price offer expenses for items that cannot be itemized and specified as requested (see
Annex 2); otherwise, his tender will be rejected.
The Commission shall not reimburse travel or subsistence expenses, nor any other costs
such as translation costs, database management or administrative costs necessary to carry
out the tasks of the contract (offices, secretarial assistance, communications, printing
costs of documents, dispatch costs, etc.). Therefore, the tenderer is requested to take into
account all these costs when preparing the offer.
9. PAYMENT
Payment shall be made in Euro (€).
Remuneration:
Payment shall be made in three instalments on submission to the Commission by the
Contractor of duly established invoices.
First interim payment: payment of 10% of the contract amount upon acceptance by the
Commission of the Inception Report.
Second interim payment: payment of 40% of the contract amount upon acceptance by
the Commission of the Interim Technical Report.
Payment of the outstanding balance of maximum 50% of the contract amount upon
acceptance of the Final Report.
The contract shall be paid on a lump-sum basis.
It is specified that the Commission may in its absolute discretion withhold all or part of the
final payment as long as any of the documents mentioned above in the section on reporting
requirements are missing.
10. CONTRACTUAL CONDITIONS
In drawing up his bid, the tenderer should bear in mind the provisions of the standard
contract attached to this invitation to tender (see Annex 3). This contract will be
31
proposed to the successful tenderer. By submitting an offer, the tenderer accepts the
conditions of this contract.
The tenderer must not include in the offer conditions or clauses that are not specified in,
or that modify, this Terms of Reference, on pain of his/her tender being rejected.
Initiation of a tendering procedure imposes no obligation on the Commission to award
the contract. The Commission shall not be liable for any compensation with respect to
tenderers whose tenders have not been accepted. Nor shall it be so liable if it decides not
to award the contract.
11. THE TENDER MUST INCLUDE (SEE ANNEX 1 AND ANNEX 2 FOR THE STANDARD FORMS TO
BE USED):
– All the information and documents required by the authorising department for the
appraisal of tenders on the basis of the exclusion, selection and award criteria set out at
points 13, 14 and 15 (please see these points for more details);
A. Tender submission form and tenderer’s declaration;
B. A duly completed legal entity form 26
;
Wherever the tenderer is a consortium of firms or groups of service
providers the legal entity form should be provided for each member or
group.
C. A duly completed banking reference form 27
;
Wherever the tenderer is a consortium of firms or groups of service
providers, the banking reference form must be provided for each firm or
group
D. A duly signed and dated solemn declaration certifying that the tenderer
is not in any of the situations which would disqualify him from taking part
in a contract awarded by the European Union (see Annex I to the Terms of
Reference).
Wherever the tenderer is a consortium of firms or groups of service
providers, the above mentioned information must be provided for each
26
The tenderer is not required to submit a legal entity form if he has already submitted such a legal entity form
in the context of a contract signed with the European Union since 01.01.2004 and if the information recorded
on this form has remained unaltered since the date of such submission.
27 The tenderer is not required to submit a banking reference form if he has already submitted such a banking
reference form in the context of a contract signed with the European Union since 01.01.2004 and if the
information recorded on this form has remained unaltered since the date of such submission.
32
firm or group.
E. Proof of economic and financial capacity28
(such as financial statements,
statements of overall turnover, statements from banks or the annual budget
in the case of semi-public or non-profit organisations).
Wherever the tenderer is a consortium of firms or groups of service
providers, the above mentioned information must be provided for each
firm or group.
F. A statement of exclusivity and availability of each proposed expert.
G. The technical offer, including:
A description of the general approach to the objectives and scope
and understanding of the tasks and services to be rendered.
A description of the proposed planning and organisation of the
work, including tools for monitoring its progress.
A description of the proposed methodology and tools, and a
description of the proposed sources of data and of the interaction
with stakeholders.
A description of the proposed team, in particular the variety and
the range of skills at its disposal.
A description of the relevant local contacts and networking in EU
countries.
All other relevant information related to the technical offer.
H. Description of the tenderer’s technical capacity to perform the tasks
involved in this contract notice, including:
The details (CVs) of educational and professional qualifications of
the proposed experts and of the persons providing the services.
For the proposed experts, this should clearly indicate their
expertise and knowledge (see 14 b) as well as their capacity to
28
The Commission may waive this obligation if such evidence has already been submitted in another
procurement procedure and it is still valid.
33
perform the task.
The tenderer shall indicate which person would be responsible for
the contract and the sole point of contact for the European
Commission throughout the performance of the study visits. The
person responsible for the contract shall have proven experience in
contract management
A list of the principal related projects that were carried out under
the applicant’s direct responsibility during the past 3 years proving
merit and experience in similar studies.
I. The price offer, using the quotation form in Annex II to the Term of
Reference
Tenders can be submitted by groupings of service providers who will not be required to
adopt a particular legal form prior to the contract being awarded, but may be required to
do so after the award. However, a grouping of firms must nominate one party to be
responsible for the receipt and processing of payments for members of the grouping, for
managing the service administration, and for coordination. Each member of the grouping
assumes a joint and several liability towards the Commission.
Wherever the tenderer is a consortium of firms or groups of service providers with a
distinct legal personality, the tender should clarify the legal status of the consortium and
specify the role, qualifications and experience of each member or group. The above
mentioned legal entity form and tenderer’s declaration should be provided for each
member or group.
Candidates or tenderers and, if they are legal entities, persons who have powers of
representation, decision-making or control over them, are informed that, should they be
in one of the situations mentioned in:
the Commission Decision of 16.12.2008 on the Early Warning System (EWS) for the
use of authorising officers of the Commission and the executive agencies (OJ, L 344,
20.12.2008, p. 125), or
the Commission Regulation of 17.12.2008 on the Central Exclusion Database – CED
(OJ L 344, 20.12.2008, p. 12),
their personal details (name, given name if natural person, address, legal form and name
and given name of the persons with powers of representation, decision-making or
control, if legal person) may be registered in the EWS only or both in the EWS and
CED, and communicated to the persons and entities listed in the above-mentioned
Decision and Regulation, in relation to the award or the execution of a procurement
contract.
Participation in tendering procedures is open on equal terms to all natural and legal
persons from one of the EU Member States and to all natural and legal persons in a third
34
country which has a special agreement with the European Union in the field of public
procurement on the conditions laid down in that agreement.
Where the Plurilateral Agreement on Government Procurement (GPA) concluded within
the WTO applies, the contracts are also open to nationals of the countries that have
ratified this Agreement, on the conditions it lays down. In that connection, it should be
noted that the services under Annex IIB to Directive 2004/18/EC and the R&D services
listed in category 8 of Annex IIA to that Directive are not caught by the Agreement.
The parties to the GPA can be consulted on the following web page:
http://www.wto.org/english/tratop e/gproc e/memobs e.htm#parties.
Operators in third countries which have signed a bilateral or multilateral agreement with
the European Union in the field of public procurement must be allowed to take part in the
tendering procedure on the conditions laid down in this agreement.
For the present call for tender, it will be decided on a case-by-case basis whether tenders
submitted by operators established in third countries not covered by such agreements will
be allowed to participate.
12. QUOTATION OF PRICES
Prices must be quoted in EUR (€) using the conversion rates published in the C series of
the 'Official Journal of the European Union' on the day when this invitation to tender was
published.
Prices must be fixed amounts that are non-revisable. The offer shall also indicate the
prices for unit of time (either in EUR per hour, day or month) that are fixed and non-
revisable amounts.
Prices shall be quoted free of all duties, taxes and other charges, including VAT, as the
European Union is exempt from such charges under Articles 3 and 4 of the Protocol on
the Privileges and Immunities of the European Union annexed to the Treaty of the
European Union and to the Treaty on the Functioning of the European Union. Exemption
is granted to the Commission by the governments of the Member States, either through
refunds upon presentation of documentary evidence or by immediate exemption. The
successful tenderer shall be given the necessary instructions by the Commission.
13. EXCLUSION CRITERIA:
Tenderers shall be excluded from participation in this procurement procedure if:
a) 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;
b) they have been convicted of an offence concerning their professional conduct by a
judgement which has the force of res judicata;
35
c) they have been guilty of grave professional misconduct proven by any means
which the contracting authority can justify;
d) 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;
e) they have 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) they have been the subject of an administrative penalty for being guilty of
misrepresentation in supplying the information required by the contracting
authority as a condition of participation in the procurement procedure or failing to
supply an information, or being declared to be in serious breach of his obligation
under contract covered by the budget.
Contracts may not be awarded to tenderers who, during the procurement procedure:
(a) are subject to a conflict of interest;
(b) are guilty of misrepresentation in supplying the information required by the
contracting authority as a condition of participation in the contract procedure or
fail to supply this information;
(c) find themselves in one of the situations of exclusion, referred to at the beginning
of point 13 (letters (a) to (f)).
Tenderers must provide a declaration on honour that they are not in one of the above-
mentioned situations.
Only the tenderer to whom the contract is to be awarded shall be required to submit,
before signing the Contract, evidence confirming his declaration on honour, by
providing:
for points (a), (b) or (e): a recent extract from the judicial record or, failing that,
an equivalent document recently issued by a judicial or administrative authority
in the country of origin or provenance showing that those requirements are
satisfied.
for point (d), a recent certificate issued by the competent authority of the State
concerned.
Where no such documents or certificates are issued in the country concerned, they 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 his country of
origin or provenance.
Depending on the national legislation of the country in which the tenderer or candidate is
established, the documents referred to in the above two paragraphs shall relate to legal persons
and/or natural persons including, where considered necessary by the contracting authority,
36
company directors or any person with powers of representation, decision-making or control in
relation to the candidate or tenderer.
Wherever the tenderer is a consortium of firms or groups of service providers, the above-
mentioned information must be provided for each member or group.
However, the Commission may waive the obligation for a candidate or tenderer to submit
documentary evidence if such evidence has already been submitted for another procurement
procedure and provided the documents were issued not more than one year earlier and are still
valid. In such cases, the candidate or tenderer must declare on his honour that the documentary
evidence has already been provided in a previous procurement procedure, provide reference to
that procedure, and confirm that there has been no change in the situation. The above-mentioned
information must be included in the tender specifications.
Please refer to the e-Certis website, which provides the possibility of determining the exact
certificates and attestations required: http://ec.europa.eu/markt/ecertis/login.do
14. SELECTION CRITERIA – MINIMUM QUALIFICATIONS REQUIRED
A. FINANCIAL AND ECONOMIC CAPACITY
o Sufficient economic and financial capacity to guarantee continuous and
satisfactory performance throughout the envisaged lifetime of the contract
o Reliability of the mitigating measures presented to cover possible deficiencies in
the evidence presented for the above criteria.
Proof of economic and financial capacity may in particular be furnished by one or
more of the following documents:
a) appropriate statements from banks or where appropriate, evidence of relevant
professional risk indemnity insurance;
b) financial statements for at most the last three years for which account have been
closed;
c) a statement of overall turnover and turnover concerning the services covered by
the contract during the last three financial years available.
The Commission may waive the obligation of a candidate or tenderer to submit the
documentary evidence above if such evidence has already been submitted to it for
the purposes of another procedure and it is still valid.
If, for some exceptional reasons which the Commission considers justified, the
tenderer or candidate is unable to provide the references requested, he may prove
his economic and financial capacity by any other means which the Commission
considers appropriate.
If the economic and financial selection criteria are fulfilled by relying on a third
party, the Commission may demand, if that tender wins the contract, that this party
signs the contract (becomes a contractor) or, alternatively, provides a joint and
several first-call guarantee. Imposing liability of the third party who provides
financial capacity allows better protection of the Union's financial interests. It
should be announced in the ToRs. If the third party chooses to sign the contract it
37
should prove that it is not in an exclusion situation and that it has access to the
market.
The Commission will conclude a contract following this tender with a single legal
counterpart.
B. TECHNICAL AND PROFESSIONAL CAPACITY
The proposed team must comprise experts who have expertise in:
a) Economic and trade analysis, and trade modelling;
b) International trade negotiations, including in trade in services;
c) Social sustainability issues – in particular, the technical capacity to carry out
social impact assessments, including analysing a range of qualitative and
quantitative issues on employment, decent work, gender and poverty, at the
general and sector-specific level;
d) Environmental sustainability issues – in particular, the technical capacity to
assess the environmental impact of trade liberalisation;
e) Human rights expertise;
f) Economic, social, environmental and human and fundamental rights
conditions in the EU28 and in RGFs;
g) Consultation and networking activities including civil society and target
groups consultation - SMEs, business, environmental NGOs, human rights
relevant groups and social partners representatives.
Expertise and knowledge must clearly be reflected in the proposed CVs. The area of expertise
of each expert must be clearly indicated.
The team should include a Team Leader, senior experts, and junior experts.
The Team Leader should demonstrate relevant professional experience of at least 10 years.
He/she should have a background in economics with detailed and proven knowledge of
sustainable impact assessments.
The team should include senior and junior trade experts (lawyers, economists and modelling
experts); senior level experts should demonstrate relevant professional experience of at least 8
years, and junior experts should demonstrate relevant professional experience of at least 2
years. The team should include senior and junior experts in social and environmental impact
assessments, as well as in human rights issues and in stakeholders' consultations or relations
with social partners and other civil society representatives with at least 8 and 2 years relevant
experience respectively.
The team should include also several experts with prior and in-depth knowledge of key RGFs
economies (preferably including knowledge of labour market issues and experience with trade
unions and other social partners).
38
Overall, the team should draw from a network of experts that have experience and capacity in
three dimensions of sustainable development, as well as in human rights, so as not to rely
essentially on secondary research.
In its offer, the tenderer must present a statement of exclusivity and availability for all of the
proposed experts. Each expert should commit to being available for the duration of the
project. In the event that an expert has to be replaced during the course of the Trade SIA, with
the written approval of the Commission, the Contractor must demonstrate that the new expert
holds the same level of expertise as the person being replaced, in accordance with the required
qualifications stated above.
The offer should also include a list of the principal related projects that were carried out under
the applicant’s direct responsibility during the past 3 years proving merit and experience in
impact assessment.
The following information, concerning the service provider's own position and the
information and formalities necessary for an appraisal of the minimum economic, financial,
professional and technical standards required, should be supplied serving to proof the
compliance with the criteria in relation to technical and professional capacity:
a) Details of educational and professional qualifications of the service provider and/or
those of the firm's managerial staff and, in particular, those of the person or persons
responsible for providing the service (detailed CV’s to be included clearly indicating
expertise in the items described above;
b) A list of the principal services provided in the past three years, with the sums, dates
and recipients, public or private, and in particular of similar projects that were carried
out under the applicant’s direct responsibility.
Where the tenderer wishes to sub-contract or otherwise rely on the capacities of other entities, it must
in that case prove 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.
Where the successful tenderer is an individual, a partnership of individuals, or a sole trader, it will be
expected to demonstrate that continuity of service can be guaranteed. The Commission will consider,
inter alia, the risk to successful project completion that would be occasioned by the death or
resignation of one or more of the individuals involved.
Only those proposals which meet all the Selection Criteria will be carried forward for assessment
under the Award Criteria.
15. AWARD CRITERIA FOR THE CHOICE OF THE CONTRACTOR
The contract will be awarded to the “most economically advantageous tender”.
Criteria to be applied are:
price (price of the tender measured as a ratio compared to the lowest tender29
), (30%
weighting) and
29
By using the formula: Price of the lowest tender * fixed percentage = … % for the criterion ‘price’
Price of the tender
39
quality in terms of technical quality of the offer (70% weighting) assessed on the basis of
the following sub-criteria:
No Qualitative award criteria Weighting
(maximum
points)
1. Coherence of the proposed team, in particular the variety and the
range of skills at its disposal, and the total amount of time that will be
put into the project by the team while differentiating between amounts
of time allocated to the Team Leader, senior and junior experts.
35
2. Quality of work plan / methodology
a) quality of work plan, including subsequent steps, timetable and
outputs, so as to deliver in time credible, coherent and reliable data and
comprehensive information;
b) methodology, understanding of objectives and tasks, in particular
quality of the quantitative and qualitative research method proposed for
the economic, social and environmental analysis.
45
3. Reliability and appropriateness of proposed local contacts, both in the
EU28 and notably in key members of the RGFs. The offer should
clearly explain how the local partners in RGFs have been selected, and
should outline the role of the local partners in respect of: labour
market and decent work analysis; development and subsequent
implementation of the stakeholder consultation plan; and review of the
proposed flanking measures.
15
4. Quality of arrangements put in place for management of the project
and co-ordination of the team meeting the requirements indicated in
the ToRs under "Organisation of Work - Team Management" (5.1).
5
Total number of points 100
The evaluation board will compare the offers based on this score, it being clear that the
Commission cannot be required to accept an offer the quality of which does not reach the
minimum standard of 65%.
A minimum threshold of 50% will also be applied per criterion, meaning that the Commission
will only assess further offers that obtain 50 % or more on a single criterion.
The sum of the price and quality criteria will result in a numerical score (e.g. 75%).
40
Enclosures of the Terms of reference:
Annex 1: Tender submission form including tenderer’s declaration, statement of exclusivity and
availability, banking references form and legal entities form
Annex 2: Quotation form for unit prices
Annex 3: Model contract, which will be proposed to the selected Contractor.
Annex 4: Quality assessment framework
41
ANNEX 1.
TENDER SUBMISSION FORM
TENDERER'S DECLARATION(S)
STATEMENT OF EXCLUSIVITY AND AVAILABILITY
BANKING REFERENCES FORM
LEGAL ENTITIES FORM
42
(preferably on headed notepaper of the tenderer)
TENDER SUBMISSION FORM
To be completed by the authorised signatory of the tenderer
One signed original and two copies of this form and each of the documents mentioned in it
must be supplied.
Contract to […]
Publication reference:
_______________________________________________________________________
1 SUBMITTED by
Tenderer name
*
* In the case of a consortium, insert the agreed name of the consortium
2 STATEMENT
I, the undersigned, being the authorised signatory of the above tenderer (including all
consortium partners, in the case of a consortium), hereby declare that we have examined and
accept without reserve or restriction the entire contents of the tender dossier for the tender
procedure referred to above.
We offer to provide the services requested in the tender dossier on the basis of the following
documents, which comprise our technical and financial offer, which is submitted in a sealed
envelope:
Tenderer's declaration (see below) and all documents as specified in the tender
specifications (including one from every consortium partner, in the case of a consortium)
Statements of exclusivity and availability signed by each of the key experts
Description of the organisation & methodology
Key experts (comprising a list of the key experts and their CVs)
Unit prices quote, using the model in Annex 2 of the Terms of Reference.
[If applicable: We undertake to guarantee the eligibility of the sub-contractor(s) for the parts
of the services for which we have stated our intention to sub-contract in the Organisation and
Methodology.]
This tender is subject to acceptance within the validity period stipulated in the “Invitation to
tender”.
Signed on behalf of the tenderer.
Name
Signature
Date
43
(preferably on headed notepaper of the tenderer)
TENDERER'S DECLARATION(S)
Declaration of honour on exclusion criteria and absence of conflict of interest
To be completed and signed by the tenderer
(including one from each consortium partner, in the case of a consortium).
Contract to […]
Publication reference:______________________________________________________
(Complete or delete the parts in grey italics in parenthese)
[Choose options for parts in grey between square brackets]
The undersigned (insert name of the signatory of this form):
in [his][her] own name (for a natural person)
or
representing the following legal person: (only if the economic operator is a legal person)
full official name:
official legal form:
full official address:
VAT registration number:
declares that [the above-mentioned legal person][he][she] is not in one of the
following situations:
a) is bankrupt or being wound up, is having its affairs administered by the courts, has entered
into an arrangement with creditors, has suspended business activities, is the subject of
proceedings concerning those matters, or is in any analogous situation arising from a
similar procedure provided for in national legislation or regulations;
b) has been convicted of an offence concerning professional conduct by a judgment of a
competent authority of a Member State which has the force of res judicata;
c) has been guilty of grave professional misconduct proven by any means which the
contracting authorities can justify including by decisions of the European Investment
Bank and international organisations;
d) is not in compliance with all 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 it is established, with those of the country of the contracting authority
and those of the country where the contract is to be performed;
e) has been the subject of a judgement which has the force of res judicata for fraud,
corruption, involvement in a criminal organisation, money laundering or any other illegal
activity, where such activity is detrimental to the Union's financial interests;
44
f) is a subject of an administrative penalty for being guilty of misrepresentation in supplying
the information required by the contracting authority as a condition of participation in a
procurement procedure or failing to supply this information, or having been declared to be
in serious breach of its obligations under contracts covered by the Union's budget.
(Only for legal persons other than Member States and local authorities, otherwise
delete) declares that the natural persons with power of representation, decision-making
or control30
over the above-mentioned legal entity are not in the situations referred to
in b) and e) above;
declares that [the above-mentioned legal person][he][she]:
g) 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 affinity, family,
emotional life or any other shared interest;
h) will inform the contracting authority, without delay, of any situation considered a
conflict of interest or which could give rise to a conflict of interest;
i) 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 award of the contract;
j) provided accurate, sincere and complete information to the contracting authority
within the context of this procurement procedure ;
acknowledges that [the above-mentioned legal person][he][she] may be subject to
administrative and financial penalties31
if any of the declarations or information
provided prove to be false.
In case of award of contract, the following evidence shall be provided upon request and
within the time limit set by the contracting authority:
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,
30
This covers the company directors, members of the management or supervisory bodies, and cases
where one natural person holds a majority of shares.
31 As provided for in Article 109 of the Financial Regulation (EU, Euratom) 966/2012 and Article
145 of the Rules of Application of the Financial Regulation
45
including for example, VAT, income tax (natural persons only), company tax (legal persons
only) and social security contributions.
For any of the situations (a), (b), (d) or (e), where any document described in 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 his country of origin or provenance.
If the tenderer is a legal person, information on the natural persons with power of
representation, decision making or control over the legal person shall be provided only upon
request by the contracting authority.
Full name Date Signature
46
STATEMENT OF EXCLUSIVITY AND AVAILABILITY32
I, the undersigned, hereby declare that I agree to participate exclusively with the tenderer <
tenderer name > in the above-mentioned service tender procedure. I further declare that I am
able and willing to work for the position for which my CV has been included in the event that
this tender is successful.
(the expert should select one of the two options underneath and delete the other one)
[I confirm that I am not engaged in another EU-funded project or contract, in a
position for which my services are required beyond the expected starting date of my
services under this tender.]
[I confirm that I am engaged in the following EU-funded project(s) or contract(s), in a
position for which my services are required beyond the expected starting date of my
services under this tender.
Title + reference of the project(s) + DG concerned (if applicable): …..
Nevertheless, I confirm that this other engagement will not impair my availability to carry
out the tasks for which my CV has been included in this tender.
Furthermore, I declare that there will not, by reason of my involvement in both this
project under tender and the other aforementioned EU project(s), be any double-financing
of time spent or work carried out under any of these projects.
I also confirm that my involvement in other EU-funded projects as well as in the project
currently tendered will present me with no conflict of interest and will not prevent, or tend
to prevent, me from carrying out my tasks under any of the EU-funded contracts with due
impartiality.]
Name
Signature
Date
32
To be completed by all key experts
47
BANKING REFERENCES FORM AND LEGAL ENTITY
FORM
Please complete and sign:
the banking references form, which can be downloaded from this address
http://ec.europa.eu/budget/contracts grants/info contracts/financial id/financial id e
n.cfm. Once completed, it must be printed, signed and attached to the tender.
the form providing details on the “legal entity”: select either the public entity form, the
private entity form or the form for individuals. The form can be downloaded from this
address:
http://ec.europa.eu/budget/contracts grants/info contracts/legal entities/legal entities
_en.cfm. Once completed, it must be printed, signed and attached to the tender.
You are not required to submit a legal entity form or a banking reference form if you have
already submitted these forms in the context of a contract signed with the European Union
since 01.01.2004 and if the information recorded on these forms has remained unaltered since.
In the case of the banking reference form, please submit such a form if you have used more
than one bank account with your previous contracts with the European Union.
48
ANNEX 2. QUOTATION FORM FOR PRICE
Tenderers are required to quote a rate for all of the following tasks
COSTS per category
Sub-total per
category in
euro (€)
A. UNIT RATES
I. Honoraria : (1)
- team leader
- senior experts
- junior experts
- local experts
Name(s) (2) Unit cost
per day in
euro ((€))
Number
of days
per
category
(Please
include as
many lines as
necessary)
Total
number of
days:
Subtotal sum
of honoraria
in euro (€)
II. Website costs:
TOTAL estimated COST of
contract
in euro (€)
The honoraria are to be detailed for the purposes of comparison.
It is understood that the resulting total, including the travel related costs and other costs, will
be treated as lump-sum. Such a lump-sum shall cover all the Contractor’s costs in order to
manage the contract as well as the Contractor’s commercial margin. Therefore, it shall cover,
inter alia, the travel and subsistence costs incurred by the Contractor to attend the meetings
explicitly required by this Contract at the moment of the submission of the tender, the
management team and supporting staff costs and all administrative costs necessary to carry
out the tasks of the contract (offices, communications, printing costs of documents, dispatch
costs, etc.).
49
ANNEX 3. MODEL CONTRACT
EUROPEAN COMMISSION DG Trade Directorate B, Services and Investment, Intellectual Property and Public Procurement
The Director
SERVICE CONTRACT
CONTRACT NUMBER – [complete]
The European Union (hereinafter referred to as "the Union"), represented by the European
Commission (hereinafter referred to as "the contracting authority"), which is represented for
the purposes of the signature of this contract by Rupert Schlegelmilch, Director DG Trade,
Directorate B, Services and Investment, Intellectual Property and Public Procurement,
on the one part, and
[full official name]
[official legal form]
[statutory registration number]
[full official address]
[VAT registration number]
[(hereinafter referred to as ‘the contractor’),][represented for the purposes of the signature of
this contract by [forename, surname and function,]]
[The parties identified above and hereinafter collectively referred to as ‘the contractor’ shall
be jointly and severally liable vis-à-vis the contracting authority for the performance of this
contract.]
on the other part,
50
HAVE AGREED
to the special conditions, the general conditions for service contracts and the following
annexes:
Annex I – Tender specifications (reference No [complete] of [insert date])
Annex II – Contractor's tender (reference No [complete] of [insert date])
[Other annexes]
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 specifications (Annex I) shall take precedence over those
in the tender (Annex II).
51
I – SPECIAL CONDITIONS
ARTICLE I.1 – SUBJECT MATTER
I.1.1 The subject matter of the contract is to carry out a trade sustainability impact
assessment for the possible future Trade in Services Agreement.
I.1.2 The contractor shall execute the tasks assigned to it in accordance with the tender
specifications annexed to the contract (Annex I).
ARTICLE I.2 – ENTRY INTO FORCE AND DURATION
I.2.1 The contract shall enter into force on the date on which it is signed by the last party.
I.2.2 Under no circumstances may performance commence before the date on which the
contract enters into force.
I.2.3 The duration of the execution of the tasks shall not exceed 12 months. Unless
otherwise specified, all periods specified in the contract are calculated in calendar
days. Execution of the tasks shall start from the date of entry into force of the contract.
The period of execution of the tasks may be extended only with the express written
agreement of the parties before the expiration of such period.
ARTICLE I.3 –PRICE
I.3.1 The maximum total amount to be paid by the contracting authority under the contract
shall be EUR [amount in figures and in words] covering all tasks executed.
I.3.2 Price revision
The total amount referred to in the Article I.3.1 shall be fixed and not subject to revision
during the performance of the contract.
ARTICLE I.4 – PAYMENT ARRANGEMENTS
I.4. Interim payments
First Interim Payment
The contractor shall submit an invoice for an interim payment of EUR [amount in figures and
in words] equal to 10 % of the total amount referred to in Article I.3.1.]
Invoices for the first interim payment shall be accompanied by:
the Inception Report in accordance with the tender specifications. The contracting authority
shall make the payment within 90 days from receipt of the invoice. The contractor shall have
15 days in which to submit additional information or corrections or a new progress report or
documents if required by the contracting authority.
52
Second Interim Payment
The contractor shall submit an invoice for an interim payment of EUR [amount in figures and
in words] equal to 40 % of the total amount referred to in Article I.3.1.
Invoices for the second interim payment shall be accompanied by:
the Interim Technical Report in accordance with the tender specifications]. The contracting
authority shall make the payment within 90 days from receipt of the invoice. The contractor
shall have 15 days in which to submit additional information or corrections or a new progress
report or documents if required by the contracting authority.
I.4. Payment of the balance
The contractor shall submit an invoice for payment of the balance.
The invoice shall be accompanied by the Final Report.
The contracting authority shall make the payment within 90 days from receipt of the invoice.
The contractor shall have 15 days in which to submit additional information or corrections, a
new final progress report or other documents if it is required by the contracting authority.
***
Where VAT is due in Belgium, the provisions of the contract constitute a request for VAT
exemption No 450, Article 42, paragraph 3.3 of the VAT code (circular 2/1978), provided the
contractor includes the following statement in the invoice(s): “Exonération de la TVA, Article
42, paragraphe 3.3 du code de la TVA (circulaire 2/1978)” or an equivalent statement in the
Dutch or German language.
ARTICLE I.5 – BANK ACCOUNT
Payments shall be made to the contractor’s bank account denominated in [euro][insert local
currency where the receiving country does not allow transactions in EUR], identified as
follows:
Name of bank:
Full address of branch:
Exact designation of account holder:
Full account number including [bank] codes:
[IBAN33 code:]
ARTICLE I.6 – COMMUNICATION DETAILS AND DATA CONTROLLER
For the purpose of Article II.6, the data controller shall be [insert name of entity].
Communications shall be sent to the following addresses:
33
BIC or SWIFT code for countries with no IBAN code.
53
Contracting authority:
European Commission
Directorate-General Trade, Directorate B
Unit B1, Trade in Services
1049 Brussels
Email: [email protected]
Contractor:
[Full name]
[Function]
[Company name]
[Full official address]
Email: [complete]
ARTICLE I.7– APPLICABLE LAW AND SETTLEMENT OF DISPUTES
I.7.1. The contract shall be governed by Union law, complemented, where necessary, by the
law of Belgium.
I.7.2. Any dispute between the parties in relation to the interpretation, application or validity
of the contract which cannot be settled amicably shall be brought before the courts of
Belgium.
ARTICLE I.8 - EXPLOITATION OF THE RESULTS OF THE CONTRACT
I.8.1 Modes of exploitation
In accordance with Article II.10.2 whereby the Union acquires ownership of the results as
defined in the tender specifications (Annex I), these results may be used for any of the
following purposes:
(a) use for its own purposes:
(i) making available to the staff of the contracting authority
(ii) making available to the persons and entities working for the contracting authority
or cooperating with it, including contractors, subcontractors whether legal or
natural persons, Union institutions, agencies and bodies, Member States'
institutions
(iii) installing, uploading, processing
(iv) arranging, compiling, combining, retrieving
(v) copying, reproducing in whole or in part and in unlimited number of copies
(b) distribution to the public:
54
(i) publishing in hard copies
(ii) publishing in electronic or digital format
(iii) publishing on the internet as a downloadable/non-downloadable file
(iv) broadcasting by any kind of technique of transmission
(v) public presentation or display
(vi) communication through press information services
(vii) inclusion in widely accessible databases or indexes
(viii) otherwise in any form and by any method
(c) modifications by the contracting authority or by a third party in the name of the
contracting authority:
(i) shortening
(ii) summarizing
(iii) modifying of the content
(iv) making technical changes to the content:
- necessary correction of technical errors
- adding new parts or functionalities
- changing functionalities
- providing third parties with additional information concerning the result (e.g.
source code) with a view of making modifications
(v) addition of new elements, paragraphs titles, leads, bolds, legend, table of content,
summary, graphics, subtitles, sound, etc.
(vi) preparation in audio form, preparation as a presentation, animation, pictograms
story, slide-show, public presentation etc.
(vii) extracting a part or dividing into parts
(viii) use of a concept or preparation of a derivate work
(ix) digitisation or converting the format for storage or usage purposes
(x) modifying dimensions
(xi) translating, inserting subtitles, dubbing in different language versions:
- English, French, German
- all official languages of EU
- languages used within EU
55
- languages of candidate countries
(d) the modes of exploitation listed in article II.10.4
(e) rights to authorise, license, or sub-license in case of licensed pre-existing rights, the
modes of exploitation set out in any of the points (a) to (c) to third parties.
Where the contracting authority becomes aware that the scope of modifications exceeds that
envisaged in the contract the contracting authority shall consult the contractor. Where
necessary, the contractor shall in turn seek the agreement of any creator or other right holder.
The contractor shall reply to the contracting authority within one month and shall provide its
agreement, including any suggestions of modifications, free of charge. The creator may refuse
the intended modification only when it may harm his honour, reputation or distort integrity of
the work.
I.8.2 Pre-existing rights and transmission of rights
All pre-existing rights shall be fully and irrevocably acquired by the Union as provided for in
Article II.10.2 and by derogation to Article II.10.3.
ARTICLE I.9 – TERMINATION BY EITHER PARTY
Either party may, unilaterally and without being required to pay compensation, terminate the
contract by formally notifying the other party by giving one month's notice. Should the
contracting authority terminate the contract, the contractor shall only be entitled to payment
corresponding to part-performance of the contract before the termination date. The first
paragraph of Article II.14.3 shall apply.
SIGNATURES
For the contractor,
[Company name/forename/surname/function]
signature[s]: _______________________
For the contracting authority,
Rupert Schlegelmilch, Director
signature:_____________________
Done at [Brussels], [date] Done at [Brussels], [date]
In duplicate in English.
56
II – GENERAL CONDITIONS FOR SERVICE CONTRACTS
1. ARTICLE II.1 – PERFORMANCE OF THE CONTRACT
II.1.1 The contractor shall perform the contract to the highest professional standards.
II.1.2 The contractor shall be solely responsible 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 it are to be executed.
II.1.3 Without prejudice to Article II.4 any reference made to the contractor’s personnel in
the contract shall relate exclusively to individuals involved in the performance of the
contract.
II.1.4 The contractor must ensure that the personnel performing the contract possesses the
professional qualifications and experience required for the execution of the tasks
assigned to it.
II.1.5 The contractor shall neither represent the contracting authority nor behave in any way
that would give such an impression. The contractor shall inform third parties that it
does not belong to the European public service.
II.1.6 The contractor shall be solely responsible for the personnel who executes the tasks
assigned to the contractor.
The contractor shall stipulate the following employment or service relationships with
its personnel:
(a) personnel executing the tasks assigned to the contractor may not be given
orders directly by the contracting authority;
(b) the contracting authority may not under any circumstances be considered to be
the employer of the personnel referred to in point (a) and the personnel shall
undertake not to invoke against the contracting authority any right arising from
the contractual relationship between the contracting authority and the
contractor.
II.1.7 In the event of disruption resulting from the action of one of the contractor's personnel
working on the contracting authority's premises or in the event that the expertise of a
member of the contractor's personnel fails to correspond to the profile required by the
contract, the contractor shall replace him without delay. The contracting authority shall
have the right to make a reasoned request for the replacement of any such personnel.
The replacement personnel 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 it resulting from the
replacement of personnel.
II.1.8 Should the execution of the tasks be directly or indirectly hampered, either partially or
totally, by any unforeseen event, action or omission, the contractor shall immediately
57
and on its own initiative record it and report it to the contracting authority. The report
shall include a description of the problem and an indication of the date on which it
started and of the remedial action taken by the contractor to ensure full compliance
with its obligations under this 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 its obligations under the contract, the contracting
authority may - without prejudice to its right to terminate the contract - reduce or
recover payments in proportion to the scale of the unperformed obligations. In
addition, the contracting authority may claim compensation or impose liquidated
damages in accordance with Article II.12.
ARTICLE II.2 – MEANS OF COMMUNICATION
II.2.1 Any communication relating to the contract or to its performance shall be made in
writing and shall bear the contract number. Any communication is deemed to have
been made when it is received by the receiving party unless otherwise provided for in
this contract.
II.2.2 Electronic communication shall be deemed to have been received by the parties on the
day of dispatch of that communication provided it is sent to the addressees listed in
Article I.6. Without prejudice to the preceding, if the sending party receives a message
of non-delivery to or of absence of the addressee, it shall make every effort to ensure
the actual receipt of such communication by the other party.
Electronic communication shall be confirmed by an original signed paper version of
that communication if requested by any of the parties provided that this request is
submitted without unjustified delay. The sender shall send the original signed paper
version without unjustified delay.
II.2.3 Mail sent using the postal services is deemed to have been received by the contracting
authority on the date on which it is registered by the department responsible referred to
in Article I.6.
Any formal notification shall be made by registered mail with return receipt or
equivalent, or by equivalent electronic means.
2. ARTICLE II.3 – LIABILITY
II.3.1 The contractor shall be solely responsible for complying with any legal obligations
incumbent on it.
II.3.2 The contracting authority shall not be held liable for any damage caused or sustained
by the contractor, including any damage caused by the contractor to third parties
during or as a consequence of performance of the contract, except in the event of
wilful misconduct or gross negligence on the part of the contracting authority.
II.3.3 The contractor shall be held liable for any loss or damage sustained by the contracting
authority in performance of the contract, including in the event of subcontracting, and
for any claim by a third party, but only to an amount not exceeding three times the
total amount of the contract. Nevertheless, if the damage or loss is caused by the gross
58
negligence or wilful misconduct of the contractor or of its personnel or subcontractors,
the contractor shall have unlimited liability for the amount of the damage or loss.
II.3.4 The contractor shall indemnify and hold the Union harmless for all damages and costs
incurred due to any claim. The contractor shall provide compensation in the event of
any action, claim or proceeding brought against the contracting authority by a third
party as a result of damage caused by the contractor during the performance of the
contract. In the event of any action brought by a third party against the contracting
authority in connection with the performance of the contract, including any alleged
breach of intellectual property rights, the contractor shall assist the contracting
authority. Such expenditure incurred by the contractor may be borne by the
contracting authority.
II.3.5 The contractor shall take out an insurance policy against risks and damage relating to
the performance of the contract, if required by the relevant applicable legislation. It
shall take out supplementary insurance as reasonably required by standard practice in
the industry. A copy of all the relevant insurance contracts shall be sent to the
contracting authority should it so request.
3. ARTICLE II.4 - CONFLICT OF INTEREST
II.4.1 The contractor shall take all the necessary measures to prevent any situation of conflict
of interest. Such situation arises where the impartial and objective performance of the
contract is compromised for reasons involving economic interest, political or national
affinity, family or emotional ties, or any other shared interest.
II.4.2 Any situation constituting or likely to lead to a conflict of interest during the
performance of the contract shall be notified to the contracting authority in writing
without delay. The contractor shall immediately take all the necessary steps to rectify
the situation. The contracting authority reserves the right to verify that the steps taken
are appropriate and may require that additional steps be taken within a specified
deadline.
II.4.3 The contractor declares that it 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, when such advantage constitutes an illegal practice or involves
corruption, either directly or indirectly, in so far as it serves as an incentive or reward
relating to the performance of the contract.
II.4.4 The contractor shall pass on all the relevant obligations in writing to its personnel and
to any natural person with the power to represent it or take decisions on its behalf and
ensure that it is not placed in a situation which could give rise to conflicts of interest.
The contractor shall also pass on all the relevant obligations in writing to third parties
involved in the performance of the contract including subcontractors.
4. ARTICLE II.5 – CONFIDENTIALITY
II.5.1 The contracting authority and the contractor shall treat with confidentiality any
information and documents, in any form, disclosed in writing or orally in relation to
the performance of the contract and identified in writing as confidential.
59
The contractor shall:
(a) not use confidential information and documents for any purpose other than fulfilling its
obligations under the contract without prior written agreement of the contracting
authority;
(b) ensure the protection of such confidential information and documents with the same level
of protection it uses to protect its own confidential information, but in no case any less
than reasonable care;
(c) not disclose directly or indirectly confidential information and documents to third parties
without prior written agreement of the contracting authority.
II.5.2 The confidentiality obligation set out in Article II.5.1 shall be binding on the
contracting authority and the contractor during the performance of the contract and for
five years starting from the date of the payment of the balance unless:
(a) the concerned party agrees to release the other party from the confidentiality obligation
earlier;
(b) the confidential information becomes public through other means than in breach of the
confidentiality obligation through disclosure by the party bound by that obligation;
(c) the disclosure of the confidential information is required by law.
II.5.3 The contractor shall obtain from any natural person with the power to represent it or
take decisions on its behalf, as well as from third parties involved in the performance
of the contract, an undertaking that they will comply with the confidentiality
obligation set out in Article II.5.1.
5. ARTICLE II.6 – PROCESSING OF PERSONAL DATA
II.6.1 Any personal data included in the contract shall be processed pursuant to Regulation
(EC) 45/2001 of the European Parliament and of the Council of 18 December 2000 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. Such data
shall be processed by the data controller solely for the purposes of the performance,
management and monitoring of the contract without prejudice to its possible
transmission to the bodies charged with monitoring or inspection tasks in application
of Union law.
II.6.2 The contractor shall have the right to access its personal data and the right to rectify
any such data. The contractor should address any queries concerning the processing of
its personal data to the data controller.
II.6.3 The contractor shall have right of recourse at any time to the European Data Protection
Supervisor.
II.6.4 Where the contract requires the processing of personal data by the contractor, the
contractor may act only under the supervision of the data controller, in particular with
regard to the purposes of the processing, the categories of data which may be
processed, the recipients of the data and the means by which the data subject may
exercise his rights.
60
II.6.5 The contractor shall grant its personnel access to the data to the extent strictly
necessary for the performance, management and monitoring of the contract.
II.6.6 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, and especially:
(i) unauthorised reading, copying, alteration or removal of storage media;
(ii) unauthorised data input, as well as any unauthorised disclosure, alteration or
erasure of stored personal data;
(iii) unauthorised use of data-processing systems by means of data transmission
facilities;
(b) ensure that authorised users of a data-processing system can access only the personal
data to which their access right refers;
(c) record which personal data have been communicated, when 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 authority;
(e) ensure that, during communication of personal data and 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 meets data protection
requirements.
ARTICLE II.7 – SUBCONTRACTING
II.7.1 The contractor shall not subcontract without prior written authorisation from the
contracting authority nor cause the contract to be de facto performed by third parties.
II.7.2 Even where the contracting authority authorises the contractor to subcontract to third
parties, it shall nevertheless remain bound by its contractual obligations and shall be
solely responsible for the proper performance of this contract.
II.7.3 The contractor shall make sure that the subcontract does not affect rights and
guarantees granted to the contracting authority by virtue of this contract, notably by
Article II.18.
ARTICLE II.8 – AMENDMENTS
II.8.1 Any amendment to the contract shall be made in writing before fulfilment of any new
contractual obligations and in any case before the date of payment of the balance.
II.8.2 The amendment may not have the purpose or the effect of making changes to the
contract which might call into question the decision awarding the contract or result in
unequal treatment of tenderers.
61
ARTICLE II.9 – ASSIGNMENT
II.9.1 The contractor shall not assign the rights, including claims for payments, and
obligations arising from the contract, in whole or in part, without prior written
authorisation from the contracting authority.
II.9.2 In the absence of such authorisation, or in the event of failure to observe the terms
thereof, the assignment of rights or obligations by the contractor shall not be
enforceable against the contracting authority and shall have no effect on it.
ARTICLE II.10 – OWNERSHIP OF THE RESULTS - INTELLECTUAL AND
INDUSTRIAL PROPERTY RIGHTS
II.10.1 Definitions
In this contract the following definitions apply:
(1) 'results' means any intended outcome of the performance of the contract which is delivered
and finally accepted by the contracting authority;
(2) 'creator' means any natural person who contributed to the production of the result and
includes personnel of the contracting authority or a third party;
(3) 'pre-existing rights' means any industrial and intellectual property rights, including
background technology, which exist prior to the contracting authority or the contractor
ordering them for the purpose of the contract execution and include rights of ownership and
use by the contractor, the creator, the contracting authority and any third parties.
II.10.2 Ownership of the results
The ownership of the results shall be fully and irrevocably acquired by the Union under this
contract including any rights in any of the results listed in this contract. Those rights in the
results may include copyright and other intellectual or industrial property rights, as well as all
technological solutions and information contained within these technological solutions,
produced in performance of the contract. The contracting authority may exploit them as
stipulated in this contract. All the rights shall be acquired by the Union from the moment the
results are delivered by the contractor and accepted by the contracting authority. Such
delivery and acceptance are deemed to constitute an effective assignment of rights from the
contractor to the Union.
The payment of the price as set out in the contract is deemed to include any fees payable to
the contractor in relation to the acquisition of rights by the Union including all forms of use of
the results.
The acquisition of rights by the Union under this contract covers all territories worldwide.
Any intermediary sub-result, raw data, intermediary analysis made available by the contractor
cannot be used by the contracting authority without the written consent of the contractor,
unless the contract explicitly provides for it to be treated as a self-contained result.
II.10.3 Licensing of pre-existing rights
The Union shall not acquire ownership of the pre-existing rights.
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The contractor shall license the pre-existing rights on a royalty-free, non-exclusive and
irrevocable basis to the Union which may use the pre-existing right as foreseen in
Article I.8.1. All the pre-existing rights shall be licensed to the Union from the moment the
results were delivered and accepted by the contracting authority.
The licensing of pre-existing rights to the Union under this contract covers all territories
worldwide and is valid for the whole duration of intellectual property rights protection.
II.10.4 Modes of exploitation
The Union shall acquire ownership of each of the results produced as an outcome of this
contract which may be used for any of the following purposes:
(a) giving access upon individual requests without the right to reproduce or exploit, as
provided for by Regulation 1049/2001 of the European Parliament and of the Council of
30 May 2001 regarding public access to European Parliament, Council and Commission
documents;
(b) storage of the original and copies made in accordance with this contract;
(c) archiving in line with the document management rules applicable to the contracting
authority.
II.10.5 Identification and evidence of granting of pre-existing rights and rights of third
parties
When delivering the results, the contractor shall warrant that they are free of rights or claims
from creators and third parties including in relation to pre-existing rights, for any use
envisaged by the contracting authority. This does not concern the moral rights of natural
persons.
The contractor shall establish to that effect a list of all pre-existing rights and rights of
creators and third parties on the results of this contract or parts thereof. This list shall be
provided no later than the date of delivery of the final results.
In the result the contractor shall clearly point out all quotations of existing textual works. The
complete reference should include as appropriate: name of the author, title of the work, date
and place of publication, date of creation, address of publication on internet, number, volume
and other information which allows the origin to be easily identified.
Upon request by the contracting authority, the contractor shall provide evidence of ownership
of or rights to use all the listed pre-existing rights and rights of third parties except for the
rights owned by the Union.
This evidence may refer, inter alia, to rights to: parts of other documents, images, graphs,
tables, data, software, technical inventions, know-how etc. (delivered in paper, electronic or
other form), IT development tools, routines, subroutines and/or other programs ("background
technology"), concepts, designs, installations or pieces of art, data, source or background
materials or any other parts of external origin.
The evidence shall include, as appropriate:
(a) the name and version number of a software product;
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(b) the full identification of the work and its author, developer, creator, translator, data
entry person, graphic designer, publisher, editor, photographer, producer;
(c) a copy of the licence to use the product or of the agreement granting the relevant
rights to the contractor or a reference to this licence;
(d) a copy of the agreement or extract from the employment contract granting the relevant
rights to the contractor where parts of the results were created by its personnel;
(e) the text of the disclaimer notice if any.
Provision of evidence does not release the contractor from its responsibilities in case it is
found that it does not hold the necessary rights, regardless of when and by whom this fact was
revealed.
The contractor also warrants that it possesses the relevant rights or powers to execute the
transfer and that it has paid or has verified payment of all due fees including fees due to
collecting societies, related to the final results.
II.10.6 Creators
By delivering the results the contractor warrants that the creators undertake not to oppose that
their names be recalled when the results are presented to the public and confirms that the
results can be divulged. Names of authors shall be recalled on request in the manner
communicated by the contractor to the contracting authority.
The contractor shall obtain the consent of creators regarding the granting of the relevant rights
and be ready to provide documentary evidence upon request.
II.10.7 Persons appearing in photographs or films
If natural, recognisable persons appear in a result or their voice is recorded the contractor
shall submit a statement of these persons (or of the persons exercising parental authority in
case of minors) where they give their permission for the described use of their image or voice
on request by the contracting authority. This does not apply to persons whose permission is
not required in line with the law of the country where photographs were taken, films shot or
audio records made.
II.10.8 Contractor's copyright for pre-existing rights
When the contractor retains pre-existing rights on parts of the results, reference shall be
inserted to that effect when the result is used as set out in Article I.8.1 with the following
disclaimer: © - year – European Union. All rights reserved. Certain parts are licensed under
conditions to the EU.
II.10.9 Visibility of Union funding and disclaimer
When making use of the results, the contractor shall declare that they have been produced
within a contract with the Union and that the opinions expressed are those of the contractor
only and do not represent the contracting authority's official position. The contracting
authority may waive this obligation in writing.
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ARTICLE II.11 – FORCE MAJEURE
II.11.1 'Force majeure' means any unforeseeable and exceptional situation or event beyond the
parties' control which prevents either of them from fulfilling any of their obligations
under the contract, which was not attributable to error or negligence on their part or on
the part of subcontractors and which proves to be inevitable in spite of exercising due
diligence. Any default of a service, defect in equipment or material or delays in
making them available, unless they stem directly from a relevant case of force
majeure, as well as labour disputes, strikes or financial difficulties, cannot be invoked
as force majeure.
II.11.2 A party faced with force majeure shall formally notify the other party without delay,
stating the nature, likely duration and foreseeable effects.
II.11.3 The party faced with force majeure shall not be held in breach of its contractual
obligations if it has been prevented from fulfilling them by force majeure. Where the
contractor is unable to fulfil its contractual obligations owing to force majeure, it shall
have the right to remuneration only for the tasks actually executed.
II.11.4 The parties shall take all the necessary measures to limit any damage due to force
majeure.
ARTICLE II.12 – LIQUIDATED DAMAGES
The contracting authority may impose liquidated damages should the contractor fail to
complete its contractual obligations, also with regard to the required quality level, according
to the tender specifications.
Should the contractor fail to perform its contractual obligations within the time-limits set by
the contract, then, without prejudice to the contractor's actual or potential liability or to the
contracting authority's right to terminate the contract, the contracting authority may impose
liquidated damages for each and every calendar day of delay according to the following
formula:
0.3 x (V/d)
V is the amount specified in Article I.3.1;
d is the duration specified in Article I.2.3 expressed in calendar days.
The contractor may submit arguments against this decision within 30 days of receipt of the
formal notification. In the absence of a reaction on its part or of written withdrawal by the
contracting authority within 30 days of the receipt of such arguments, the decision imposing
the liquidated damages shall become enforceable.
The parties expressly acknowledge and agree that any sums payable under this article are in
the nature of liquidated damages and not penalties, and represent a reasonable estimate of fair
compensation for the losses incurred due to failure to fulfil obligations which may be
reasonably anticipated.
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ARTICLE II.13 – SUSPENSION OF THE PERFORMANCE OF THE CONTRACT
II.13.1 Suspension by the contractor
The contractor may suspend the performance of the contract or any part thereof if a case of
force majeure makes such performance impossible or excessively difficult. The contractor
shall inform the contracting authority about the suspension without delay, giving all the
necessary reasons and details and the envisaged date for resuming the performance of the
contract.
Once the circumstances allow resuming performance, the contractor shall inform the
contracting authority immediately, unless the contracting authority has already terminated the
contract.
II.13.2 Suspension by the contracting authority
The contracting authority may suspend the performance of the contract or any part thereof:
(a) if the contract award procedure or the performance of the contract prove to have been
subject to substantial errors, irregularities or fraud;
(b) in order to verify whether presumed substantial errors, irregularities or fraud have
actually occurred.
Suspension shall take effect on the day the contractor receives formal notification, or at a later
date provided in the notification. The contracting authority shall give notice as soon as
possible to the contractor to resume the service suspended or inform the contractor that it is
proceeding with the termination of the contract. The contractor shall not be entitled to claim
compensation on account of suspension of the contract or of part thereof.
ARTICLE II.14 – TERMINATION OF THE CONTRACT
II.14.1 Grounds for termination
The contracting authority may terminate the contract in the following circumstances:
(a) if a change to the contractor’s legal, financial, technical or organisational or ownership
situation is likely to affect the performance of the contract substantially or calls into
question the decision to award the contract;
(b) if execution of the tasks has not actually commenced within three months of the date
foreseen, and the new date proposed, if any, is considered unacceptable by the
contracting authority, taking into account Article II.8.2;
(c) if the contractor does not perform the contract as established in the tender specifications
or fails to fulfil another substantial contractual obligation;
(d) in the event of force majeure notified in accordance with Article II.11 or if the
performance of the contract has been suspended by the contractor as a result of force
majeure, notified in accordance with Article II.13, where either resuming performance
is impossible or the modifications to the contract might call into question the decision
awarding the contract or result in unequal treatment of tenderers;
(e) if the contractor is declared bankrupt, is being wound up, is having its affairs
administered by the courts, has entered into an arrangement with creditors, has
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suspended business activities, is the subject of proceedings concerning those matters, or
is in any analogous situation arising from a similar procedure provided for in national
legislation or regulations;
(f) if the contractor or any natural person with the power to represent it or take decisions on
its behalf has been found guilty of professional misconduct proven by any means;
(g) if the contractor is not in compliance with its 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 it is established or with those of the country of the
applicable law of this contract or those of the country where the contract is to be
performed;
(h) if the contracting authority has evidence that the contractor or natural persons with the
power to represent it or take decisions on its behalf have committed fraud, corruption,
or are involved in a criminal organisation, money laundering or any other illegal activity
detrimental to the Union's financial interests;
(i) if the contracting authority has evidence that the contractor or natural persons with the
power to represent it or take decisions on its behalf have committed substantial errors,
irregularities or fraud in the award procedure or the performance of the contract,
including in the event of submission of false information;
(j) if the contractor is unable, through its own fault, to obtain any permit or licence required
for performance of the contract.
II.14.2 Procedure for termination
When the contracting authority intends to terminate the contract it shall formally notify the
contractor of its intention specifying the grounds thereof. The contracting authority shall
invite the contractor to make any observations and, in the case of point (c) of Article II.14.1,
to inform the contracting authority about the measures taken to continue the fulfilment of its
contractual obligations, within 30 days from receipt of the notification.
If the contracting authority does not confirm acceptance of these observations by giving
written approval within 30 days of receipt, the termination procedure shall proceed. In any
case of termination the contracting authority shall formally notify the contractor about its
decision to terminate the contract. In the cases referred to in points (a), (b), (c), (e), (g) and (j)
of Article II.14.1 the formal notification shall specify the date on which the termination takes
effect. In the cases referred to in points (d), (f), (h), and (i) of Article II.14.1 the termination
shall take effect on the day following the date on which notification of termination is received
by the contractor.
II.14.3 Effects of termination
In the event of termination, the contractor shall waive any claim for consequential damages,
including any loss of anticipated profits for uncompleted work. On receipt of the notification
of termination, the contractor shall take all the appropriate measures to minimise costs,
prevent damages, and cancel or reduce its commitments. The contractor shall have 60 days
from the date on which termination takes effect to draw up the documents required by the
special conditions for the tasks already executed on the date of termination and produce an
invoice if necessary. The contracting authority may recover any amounts paid under the
contract.
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The contracting authority may claim compensation for any damage suffered in the event of
termination.
On termination the contracting authority may engage any other contractor to execute or
complete the services. The contracting authority shall be entitled to claim from the contractor
all extra costs incurred in this regard, without prejudice to any other rights or guarantees it
may have under the contract.
ARTICLE II.15 – REPORTING AND PAYMENTS
II.15.1 Date of payment
Payments shall be deemed to be effected on the date when they are debited to the contracting
authority's account.
II.15.2 Currency
The contract shall be in euros.
Payments shall be executed in euros or in the local currency as provided for in Article I.5.
Conversion between the euro and another currency shall be made according to the daily euro
exchange rate published in the Official Journal of the European Union or, failing that, at the
monthly accounting exchange rate established by the European Commission and published on
its website, applicable on the day on which the payment order is issued by the contracting
authority.
II.15.3 Costs of transfer
The costs of the transfer shall be borne in the following way:
(a) costs of dispatch charged by the bank of the contracting authority shall be borne by the
contracting authority,
(b) cost of receipt charged by the bank of the contractor shall be borne by the contractor,
(c) costs for repeated transfer caused by one of the parties shall be borne by the party causing
repetition of the transfer.
II.15.4 Invoices and Value Added Tax
Invoices shall contain the contractor's identification, the amount, the currency and the date, as
well as the contract reference.
Invoices shall indicate the place of taxation of the contractor for value added tax (VAT)
purposes and shall specify separately the amounts not including VAT and the amounts
including VAT.
The contracting authority is, as a rule, exempt from all taxes and duties, including VAT,
pursuant to the provisions of Articles 3 and 4 of the Protocol on the Privileges and Immunities
of the European Union.
The contractor shall accordingly complete the necessary formalities with the relevant
authorities to ensure that the supplies and services required for performance of the contract
are exempt from taxes and duties, including VAT exemption.
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II.15.5 Pre-financing and performance guarantees
Pre-financing guarantees shall remain in force until the pre-financing is cleared against
interim payments or payment of the balance and, in case the latter takes the form of a debit
note, three months after the debit note is notified to the contractor. The contracting authority
shall release the guarantee within the following month.
Performance guarantees shall cover performance of the service in accordance with the terms
set out in the tender specifications until its final acceptance by the contracting authority. The
amount of a performance guarantee shall not exceed the total price of the contract. The
guarantee shall provide that it remains in force until final acceptance. The contracting
authority shall release the guarantee within a month following the date of final acceptance.
Where, in accordance with Article I.4, a financial guarantee is required for the payment of
pre-financing, or as performance guarantee, it shall fulfill the following conditions:
(a) the financial guarantee is provided by a bank or an approved financial institution or, at
the request of the contractor and agreement by the contracting authority, by a third party;
(b) the guarantor stands as first-call guarantor and does not require the contracting authority
to have recourse against the principal debtor (the contractor).
The cost of providing such guarantee shall be borne by the contractor.
II.15.6 Interim payments and payment of the balance
The contractor shall submit an invoice for interim payment upon delivery of intermediary
results, accompanied by a progress report or any other documents, as provided for in
Article I.4 or in the tender specifications.
The contractor shall submit an invoice for payment of the balance within 60 days following
the end of the period referred to in Article I.2.3, accompanied by a final progress report or any
other documents provided for in Article I.4 or in the tender specifications.
Upon receipt, the contracting authority shall pay the amount due as interim or final payment
within the periods specified in Article I.4, provided the invoice and documents have been
approved and without prejudice to Article II.15.7. Approval of the invoice and documents
shall not imply recognition of the regularity or of the authenticity, completeness and
correctness of the declarations and information they contain.
Payment of the balance may take the form of recovery.
II.15.7 Suspension of the time allowed for payment
The contracting authority may suspend the payment periods specified in Article I.4 at any
time by notifying the contractor that its invoice cannot be processed, either because it does not
comply with the provisions of the contract, or because the appropriate documents have not
been produced.
The contracting authority shall inform the contractor in writing as soon as possible of any
such suspension, giving the reasons for it.
Suspension shall take effect on the date the notification is sent by the contracting authority.
The remaining payment period shall start to run again from the date on which the requested
information or revised documents are received or the necessary further verification, including
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on-the-spot checks, is carried out. Where the suspension period exceeds two months, the
contractor may request the contracting authority to justify the continued suspension.
Where the payment periods have been suspended following rejection of a document referred
to in the first paragraph and the new document produced is also rejected, the contracting
authority reserves the right to terminate the contract in accordance with Article II.14.1(c).
II.15.8. Interest on late payment
On expiry of the payment periods specified in Article I.4, and without prejudice to
Article II.15.7, the contractor is entitled to interest on late payment at the rate applied by the
European Central Bank for its main refinancing operations in Euros (the reference rate), plus
eight points. The reference rate shall be the rate in force on the first day of the month in which
the payment period ends, as published in the C series of the Official Journal of the European
Union.
The suspension of the payment periods in accordance with Article II.15.7 may not be
considered as a late payment.
Interest on late payment shall cover the period running from the day following the due date
for payment up to and including the date of actual payment as defined in Article II.15.1.
However, when the calculated interest is lower than or equal to EUR 200, it shall be paid to
the contractor only upon request submitted within two months of receiving late payment.
ARTICLE II.16 - REIMBURSEMENTS
II.16.1 Where provided by the special conditions or by the tender specifications, the
contracting authority shall reimburse the expenses which are directly connected with
execution of the tasks on production of original supporting documents, including
receipts and used tickets, or failing that, on production of copies or scanned originals,
or on the basis of flat rates.
II.16.2 Travel and subsistence expenses shall be reimbursed, where appropriate, on the basis
of the shortest itinerary and the minimum number of nights necessary for overnight
stay at the destination.
II.16.3 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;
In addition, travel outside Union territory shall be reimbursed provided the contracting
authority has given its prior written consent.
II.16.4 Subsistence expenses shall be reimbursed on the basis of a daily subsistence allowance
as follows:
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(a) for journeys of less than 200 km for a return trip, no subsistence allowance shall be
payable;
(b) daily subsistence allowance shall be payable only on receipt of supporting documents
proving that the person concerned was present at the destination;
(c) daily subsistence allowance shall take the form of a flat-rate payment to cover all
subsistence expenses, including meals, local transport which includes transport to and
from the airport or station, insurance and sundries;
(d) daily subsistence allowance shall be reimbursed at the flat rates specified in Article
I.3;
e) accommodation shall be reimbursed on receipt of supporting documents proving the
necessary overnight stay at the destination, up to the flat-rate ceilings specified in
Article I.3.
II.16.5 The cost of shipment of equipment or unaccompanied luggage shall be reimbursed
provided the contracting authority has given prior written authorisation.
II.16.6 Conversion between the euro and another currency shall be made as specified in
Article II.15.2.
6. ARTICLE II.17 – RECOVERY
II.17.1 If an amount is to be recovered under the terms of the contract, the contractor shall
repay the contracting authority the amount in question according to the terms and by
the date specified in the debit note.
II.17.2 If the obligation to pay the amount due is not honoured by the date set by the
contracting authority in the debit note, the amount due shall bear interest at the rate
indicated in Article II.15.8. Interest on late payments shall cover the period from the
day following the due date for payment, up to and including the date when the
contracting authority receives the full payment of the amount owed.
Any partial payment shall first be entered against charges and interest on late payment
and then against the principal amount.
II.17.3 If payment has not been made by the due date, the contracting authority may, after
informing the contractor in writing, recover the amounts due by offsetting them
against any amounts owed to the contractor by the Union or by the European Atomic
Energy Community or by calling in the financial guarantee, where provided for in
Article I.4.
ARTICLE II.18 – CHECKS AND AUDITS
II.18.1 The contracting authority and the European Anti-Fraud Office may check or have an
audit on the performance of the contract. It may be carried out either directly by their
own staff or by any other outside body authorised to do so on their behalf.
Such checks and audits may be initiated during the performance of the contract and
during a period of five years which starts running from the date of the payment of the
balance.
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The audit procedure shall be deemed to be initiated on the date of receipt of the
relevant letter sent by the contracting authority. Audits shall be carried out on a
confidential basis.
II.18.2 The contractor shall keep all original documents stored on any appropriate medium,
including digitised originals when they are authorised by national law and under the
conditions laid down therein, for a period of five years which starts running from the
date of payment of the balance.
II.18.3 The contractor shall allow the contracting authority's staff and outside personnel
authorised by the contracting authority the appropriate right of access to sites and
premises where the contract is performed and to all the information, including
information in electronic format, needed in order to conduct such checks and audits.
The contractor shall ensure that the information is readily available at the moment of
the check or audit and, if so requested, that information be handed over in an
appropriate form.
II.18.4 On the basis of the findings made during the audit, a provisional report shall be drawn
up. It shall be sent to the contractor, which shall have 30 days following the date of
receipt to submit observations. The final report shall be sent to the contractor within
60 days following the expiry of that deadline.
On the basis of the final audit findings, the contracting authority may recover all or
part of the payments made and may take any other measure which it considers
necessary.
II.18.5 By virtue of Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996
concerning on-the-spot checks and inspection carried out by the Commission in order
to protect the European Communities' financial interests against fraud and other
irregularities and Regulation (EC) No 1073/1999 of the European Parliament and the
Council of 25 May 1999 concerning investigation conducted by the European Anti-
Fraud Office (OLAF), the OLAF may also carry out on-the-spot checks and
inspections in accordance with the procedures laid down by Union law for the
protection of the financial interests of the Union against fraud and other irregularities.
Where appropriate, the findings may lead to recovery by the contracting authority.
II.18.6 The Court of Auditors shall have the same rights as the contracting authority, notably
right of access, for the purpose of checks and audits.
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ANNEX 4: Quality Assessment Form34
Title of the Trade SIA
QA performed against
….
(select just one)
Draft final report QA performed against ….
(select just one)
DG / Unit
Project Officer
responsible
EIMS Technical
Manager
(Unit: TRADE/02)
Evaluator (Contractor)
QA performed by…. Project
Officer/SIA
Co-
ordinator
QA
performed
by….
Project Officer/SIA Co-
ordinator
Date of QA
34
Refer to the Guide on Scoring the Criteria (attached below) for how to assess each criterion
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GUIDE ON SCORING THE CRITERIA
This list of indicators aims at helping to score each criterion and it can also assist in the process of developing
the argumentation underpinning the score.
The indicators may be adapted according to the specificities of each Trade SIA and some indicators may be
omitted and others added when appropriate.
The indicators are, roughly speaking, presented in order of importance (i.e., those at the start of the list are
crucial even for a moderate score while the concurrent accomplishment of those at the end of the list may
suggest a higher score).
(1) Relevance
Does the Trade SIA report respond to information needs – in particular, those set out in the
terms of reference?
This criterion concerns how well the Trade SIA responds to the terms of reference.
The Trade SIA deals with and responds to the research questions identified in the
terms of reference
A justification is provided for any research question that has not been answered
The scope covers the requested scenarios, periods of time, geographical areas, target
groups, parts of budget, regulations, etc
Limitations in scope are discussed and justified
Effects on other policies, programmes, groups, areas etc are considered
Unintended effects are identified
The evolution of the intervention is taken into account, and possible changes in the
problems and needs compared to the situation at the start of the intervention have been
addressed
The Trade SIA broadens the scope or enlightens the approaches in the policy cycle
The Trade SIA adds value to existing policy knowledge
Other
(2) Appropriate design
Is the design of the Trade SIA adequate for obtaining the results needed to answer the
research questions identified in the terms of reference?
This criterion concerns the inception phase. The inception phase operationalises and possibly
complements the terms of reference. In some cases, because of unforeseen events, it may also
relate to a subsequent reorientation of parts of the Trade SIA.
The rationale of the intervention, cause-effect relations, outcomes, policy context,
stakeholder interests, etc have been studied and taken into account in the design of the
Trade SIA
The research method chosen is coherent with the needs expressed in the terms of
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reference, and with requests and instructions given to the Contractors
The research method is clearly and adequately described in sufficient detail that its
quality can be judged, and that in principle the Trade SIA could be re-performed
Information sources and analysis tools are adequate for answering the research
questions
Judgement criteria to help answer the research questions are pre-defined
Weaknesses of the research method chosen are pointed out along with potential risks
Other methodological alternatives are considered; their pros and cons are explained
The research design has been validated with experts or relevant stakeholders if
appropriate (eg, experts on related policies, specific Trade SIA know-how)
Ethical issues are properly considered (confidentiality of sources of information,
potential harm or difficulty caused by participation of stakeholders, etc)
Other
(3) Participation and consultation
Has the Trade SIA undertaken inclusive, participatory consultation; delivered useful
information and results to stakeholders; and involved relevant international expertise?
This criterion recognises the particular importance of consultation in the Trade SIA process;
and considers how well the present study responds to DG Trade's own commitments in
respect of participation and consultation within Trade SIAs.
The Trade SIA has informed and involved the diverse stakeholders and government
bodies throughout the decision-making process
The Trade SIA has ensured that all key stakeholders' perspectives have been
identified, understood and taken into account; and that the empirical evidence for
effects identified by stakeholders has been critically examined
Information about the Trade SIA has been made as accessible as possible – in terms of
quality, style, quantity, format, local needs, etc. – and particular attention has been
paid to the needs of non-specialists
Participative processes have been adapted to local social and political contexts
The research design has been validated with experts or relevant stakeholders if
appropriate (eg, experts on related policies, specific expertise in impact assessment,
etc.)
The Trade SIA develops alternative scenarios, visions and options for trade policy in a
participative way
The Trade SIA has ensured a thorough and balanced consultation of stakeholders both
in the EU and in the EU's negotiating counterparties
The consultation procedure has provided well-prepared, concise reports and a clear,
transparent process for gathering and integrating feedback
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The contractors have sought and obtained advice and input from relevant international
organisations and/or from individuals with recognised expertise in areas or issues that
are relevant to the research questions
Other
(4) Mainstreaming of sustainability
Does the Trade SIA succeed in integrating consideration for sustainability into the key trade
and other issues that emerge in the underlying negotiating agenda?
This criterion concerns the contribution made by the present study towards placing
sustainability at the heart of trade policy-making.
Seeks to integrate the concept of sustainability at an early stage into the objectives and
results of trade policy
Facilitates the identification of alternative more sustainable development options and
proposals
Identifies opportunities and limitations that the environment imposes on the
development of trade policy
Includes the concepts of precaution and continuous improvement – in particular,
during the implementation of agreements (ex post monitoring)
Documents and justifies how sustainability issues are considered in the decision-
making process
Other
(5) Reliable data
Are the data and evidence collected adequate for their intended use, and has their reliability
been ascertained?
This criterion concerns the relevance and correctness of both primary and secondary data.
Available information and sources are well identified
Relevant literature and previous studies have been sufficiently reviewed
Existing monitoring systems were used
Data and information are free of error; data gathered are appropriate and sufficient
The data collection rationale is explained; and it is coherent with the design of the
study
The quality of existing or collected data was checked and ascertained
The amount of qualitative information and quantitative data is balanced and
appropriate for a valid and reliable analysis
82
The tools and means used to collect and process data (e.g. surveys, case studies, expert
groups, etc…) were: selected in relation to criteria specified in the inception phase;
appropriate and sufficient for answering the research questions; used appropriately so
as to guarantee the reliability and validity of results
Limitations in the effectiveness of data collection (missing coverage, non-participation
or non-attendance of selected cases) are discussed and explained.
Correcting measures have been taken to avoid any potential bias arising from such
limitations; or if not, the report discusses the implications for the study evidence and
effectiveness
Other
(6) Sound analysis
Are the data and evidence analysed systematically in order to answer the research questions
and meet other information needs in a valid manner?
This criterion refers to the correct interpretation of data and to the adequacy of the method
applied.
There is a clear, solid and coherent deductive analysis (e.g. controlled comparison,
experimental research, inferential statistics, etc…)
The analysis is well focused on the most relevant cause/effect relations and influences
underlying the intervention logic, and alternative explanations have been considered
The analysis uses appropriate quantitative or qualitative techniques, suitable to the
context of the Trade SIA
Cross checking of findings has taken place. The analysis relies on two or more
independent lines of evidence
Explanatory arguments are explicitly (or implicitly) presented
The context (historical, socio-economic, etc…) is well taken into account in the
analysis
The report reflects an appropriate range of stakeholders consulted
Inputs from important stakeholders are used in a balanced way
The limitations of the analysis, and exceptions to the general explanations, or
contradictory evidence, are identified, discussed and presented in a transparent manner
Other
(7) Credible findings
Do findings follow reasonably from, and are they justified by, an analysis and interpretation
of data/information based on pre-established judgement criteria?
83
This criterion concerns the coherence of the findings with the preceding analysis and data.
Judgements are based on transparent criteria
Findings are supported by evidence and reinforced by sound analysis and/or plausible
interpretation
Generalisations or extrapolations, when made, are justified (e.g., through the sampling
or selection of cases)
Findings corroborate existing knowledge; differences from or contradictions with
existing practice and received wisdom are highlighted and explained
Stakeholder opinions are considered and reflected when appropriate
Main findings are replicable
Limitations on validity are pointed out; trade-offs between internal and external
validity are identified and discussed
Results of the analysis reflect an acceptable compromise of the perceptions of
stakeholders and those derived from observed or estimated facts and figures
Other
(8) Valid conclusions
Are conclusions unbiased and fully based on the findings?
This criterion concerns the extent to which conclusions flow logically from the findings, and
are based on impartial judgement.
Conclusions are properly addressed to the research questions of the Trade SIA and to
other information needs
Conclusions are coherently and logically substantiated by the findings of the Trade
SIA
There are no relevant conclusions missing on the basis of the evidence presented
Conclusions are interpreted in relation to the policy context
Conclusions are free of personal or partisan considerations; the potential influence of
the values and interests of the research team on the research method and outcome is
openly discussed
Conclusions are presented and related in an orderly fashion (categorised, ranked,
prioritised, sequenced)
Controversial issues are presented in a fair and balanced manner
Other
84
(9) Helpful recommendations
Are the areas highlighted for improvements coherent with the conclusions? Are the suggested
options realistic and impartial?
This criterion concerns the soundness and realism of the recommendations
Recommendations stem logically from conclusions
Plausible options for improvements are identified
Recommendations covers all relevant main conclusions
They are realistic, impartial, and potentially useful
Relations among recommendations are taken into account (e.g. priority ranking,
sequencing, etc)
Recommendations provide certain guidance for action planning
Where feasible, the cost of recommendations is estimated
Other
(10) Clarity
Is the report well structured, balanced, and written in an understandable manner?
This criterion concerns the clarity of the presentation and the appropriateness of the content of
the Trade SIA.
The content of the report describes the policy being evaluated, its context, the purpose
of the Trade SIA, contextual limitations, method, findings, etc in a neat and well
structured manner
The report is well structured and signposted in order to guide and facilitate reading
Key messages are summarised and highlighted
There is a clearly linked and presented sequence between data, interpretation and
conclusions
The report includes a relevant and concise executive summary, which includes the
main conclusions and recommendations in a balanced and impartial manner
Specialised concepts are used only when necessary and if used, are clearly defined
Tables, graphs, and similar presentational tools are used to facilitate understanding;
they are well commented with narrative text
the length of the report (excluding appendices) is proportionate (good balance of
descriptive and analytical information)
Detailed information and technical analysis are left for the appendix; information
overload is avoided in the report
The report provides a proper focus of truly relevant issues
85
Written style and presentation is adapted for the various relevant target readers; the
evaluator show awareness of potentially different needs and interests
Other
OVERALL ASSESSMENT OF THE REPORT
The overall assessment of the Trade SIA report is not a self-standing criterion. Instead it
summarises key elements and consequences of the eight preceding criteria. Moreover, the
overall assessment needs to consider the concerns of the potential users of each specific Trade
SIA:
Does the Trade SIA fulfil contractual conditions? (certain internal users);
Are the findings and conclusions reliable, and are there any specific limitations to their
validity and completeness? (most internal and external users);
Notwithstanding intrinsic weaknesses, is the information in the report – or parts of it –
a useful input for designing or improving interventions, setting priorities, and
allocating resources? (certain internal users).