Best practices for ITTs published by prime contractors
Introduction
In the frame of its major procurements, ESA aims to ensure fairness of competition at all levels and in particular between Prime Contractors and Subcontractors.
In 2005, ESA adopted a unique set of rules – Best Practices for the Selection of Subcontractors by Prime Contractors in the frame of ESA's Major Procurements. This set of rules was revised in 2012 to bring them in line with the new Procurement Regulations of the Agency, and the current applicable version is known as ‘Revision of Best Practices For the selection of Subcontractors by Prime Contractors in the frame of ESA’s major procurements’ ref. ESA/IPC(2012)65,rev.2 (hereinafter also referred to as ‘Code of Best Practices’).
The purpose of this document is to ensure that Prime Contractors together with their major Subcontractors when required to perform the selection of Subcontractors in the frame of an ESA Programme, subsequent to their selection by the Agency, conduct their procurement in line with the principles of fairness and equity outlined herein. The Code of Best Practices therefore provides a minimum set of requirements to be implemented by a Prime Contractor or Subcontractor during the selection of Subcontractors, aimed to guarantee such fair and equal treatment of all potential tenderers.
Such requirements have been approved by the Agency’s Industrial Policy Committee (IPC) and any modification or adaptation required in order to take account of individual programme constraints shall be authorised and implemented by the Agency’s Procurement Department in co-operation with the responsible Programme Directorate and IPC. The Industrial Ombudsman shall be kept informed.
Furthermore, The Code of Best Practices and its annexes form an integral part of the contractual and management requirements of ESA's Invitations to Tender/Requests for Quotation (ITT’s/RFQ’s) for the selection of the Prime Contractor. Therefore it requires from the Tenderers submitting a proposal in such capacity an explicit statement of acceptance.
Although specifically targeted at major procurements such as space and/or ground segment above €20 million these requirements are not to be construed as being restricted to such procurements. It may be applied in the frame of any procurement, independent of its nature or magnitude, should ESA feel it adequate in order to achieve fairness of competition, and in such a way that it will not bring unnecessary burden on potential tenderers.
General Principles
The Agency shall be given full visibility and participate in the ITT/RFQ preparation, in the evaluation and selection process, including the right to perform an audit on the overall procedure.
The Prime Contractor or Subcontractor issuing the ITT/RFQ (hereinafter referred to as “Issuing Company”) shall be responsible for preparing the ITT documentation, for leading the Evaluation process and for recommending the selected economic operator in accordance with the Best Practice Tender Evaluation Manual (appendix 1 to the Code of Best Practices).
In the event a Contractor wishes to bid for any element for which he will be the Issuing Company carrying out a competitive tendering, the Agency in the interest of impartiality will either:
i) exclude the Contractor/Issuing Company from the evaluation in which case the Contractor/Issuing company shall only be authorised to participate as observers (no voting or marking rights), or
ii) authorise the Issuing Company to perform the evaluation provided that at least the Chairperson is an ESA staff. This shall also apply in case of companies belonging to the same industrial and/or legal organisation or affiliated companies, meaning any form of association giving a company vested interest in the outcome of the evaluation; such procedure shall in no way absolve the Contractor from his overall responsibility vis-à-vis the subcontractor selected under this procedure.
The Agency retains the right to initiate at any moment a parallel evaluation to be performed by its own staff.
How to register as an External Entity in order to publish non-ESA Tender Actions
The EIA (Entity Tender Administrator) or Deputy of the Registered Legal Entity who wishes to request the role as ‘External Entity’ should request this through esa-star Registration, using its unique entity code.
Please consult the documentation in the link below and proceed to page 26 Para 2.8 for instructions.
Publication and Management of non-ESA Tender Actions (ESA Programmes)
Once your Entity has been validated as External Entity to issue non-ESA Tender Actions, you can consult the Powerpoint presentation below for full instructions on proceeding with the preparation and issuing of the iITT and ITT.
https://esastar.sso.esa.int/Lists/List%20Training/Forms/AllItems.aspx
Evaluation of Tenders by the Contractor
For each ITT/RFQ the Contractor shall appoint a Tender Evaluation Board (TEB), which shall include (a) representative(s) of the Agency.
The Agency’s Contract Officer shall have the discretionary right at his own request to participate in any TEB.
In the event of a Tender received from the Issuing Company or companies belonging to its same industrial and/or legal organisation or affiliated companies, the Agency in the interest of impartiality will either:
- exclude the Issuing Company from the evaluation, in which case the Issuing company will be allowed to participate only as an Observer and the evaluation will be led by the Agency or the higher tier Contractor;
- authorise the Issuing Company to perform the evaluation provided that at least the Chairperson is an Agency staff, if the TEB is set up by the Issuing Company.
The Tender Evaluation Report, concluding with the recommendation of placing the contract with the tenderer representing the best combination between technical quality and price, shall contain inter-alia a matrix of the tenders received, the marks awarded and the price, and shall be signed by all TEB Members and sent to the Agency’s Contract Officer.
Recommendation by the Prime Contractor and award decision
The Prime Contractor’s recommendation will be made on the basis of the evaluation results of the TEB – also in the case of an ESA lead TEB – and any other constraints and considerations of the programme including, if any, geographical return requirements or special measures defined by the Agency at the time of issuing of the ITT/RFQ.
In general, no tender having obtained an overall weighted mark below 60 shall be put forward by the Contractor to the Agency, unless such recommendation specifically identifies the necessary measures in order to bring the recommended tender to such a level and to further optimise the best combination of technical quality and price. Such recommendation shall be sent to the Agency’s project manager and the Agency’s Contracts Officer.
The Agency shall decide either to endorse the recommendation or request that it be submitted for decision to a joint ESA/Industry Senior Procurement Board with the possibility to appeal at higher management level in case of persisting disagreement. The Agency always has the right to request a new evaluation and shall notify the Contractor of the reasons of its decision.
The ESA Industrial Ombudsman
Pursuant to Article 17 of the ESA Procurement Regulations the procurements carried out under Best Practices are not subject to the Review procedure foreseen under Part VI of the Agency’s Procurement Regulations.
Nevertheless in order to guarantee the principle of fair competition and fair access to Contractor’s procurements at all levels, the Agency has established an Industrial Ombudsman competent in facilitating and solving disputes among industry in order to ensure that all Contractors are given a fair opportunity of participation in ESA Programmes.
The Ombudsman shall not be competent for receiving complaints concerning disputes between the Agency and Industry in the frame of Best Practices. The Ombudsman will carry out its investigations under strict confidentiality. The Ombudsman has the right to recommend any conservatory measure deemed necessary to the Head of the Agency’s Procurement Department.
The Ombudsman will make a recommendation on the resolution of the matter. If the company is not satisfied with the Ombudsman’s recommendation, the Ombudsman shall make a special report to the Head of the Agency’s Procurement Department.
