Terms of Reference of the ESA Industrial Ombudsman
The Ombudsman and the back-up Ombudsman are competent for:
- Facilitating the resolution of disputes between industry and ESA on potential procedural breach of the ESA Procurement Regulations in the pre-contractual phase in accordance with Part VI of ESA Procurement Regulations (ESA/REG/001).
- Facilitating the resolution of disputes among industry during procurements in the frame of “Best Practices”;
- Facilitating communications between bidders, potential bidders and between contractors and bidders in the resolution of matters arising in the frame of an ESA procurement; and
Participating as a member in Dispute Adjudication Boards for amicable resolution of disputes between ESA and the Contractor. During this phase, he is further competent to facilitate communications between contractors.
In addition, the Ombudsman shall upon request by the Executive, give ad-hoc consultation to ESA on industrial issues and issues of revision and modification of rules and procedures applicable to procurement matters.
The Ombudsman is not competent for investigating complaints based on questions of the industrial return and geographical distribution. He does not participate in the evaluation of proposals or source selection process.
All investigations are carried out in the strictest confidentiality. When conducting an investigation the Ombudsman may call for and collect all relevant facts to resolve or advise on the issues raised by the parties.
To that effect, the Ombudsman:
- Will maintain strict confidentiality as to the source of the concern
- Will be granted access to the documents and proprietary information, the collection of which will be coordinated through the designated ESA support staff, and
- Will be granted access to all technical specifications and requirements either established by ESA or by the company carrying out the procurement according to the ‘Best Practices’ in the frame of the ESA programme.
In the frame of the Procurement Review Procedure
Subject to the restrictions indicated in the Procurement Regulations, the Ombudsman shall investigate cases of alleged procedural breach of these Regulations brought in front of him. Such investigations shall be conducted in accordance with the procedure laid down in Article 53 of ESA Procurement Regulations (ESA/REG/001). In this context, he will be granted access to ESA internal papers and related documentation including the proceedings of the Tender Evaluation Boards.
In the frame of ‘Best Practices’
The Ombudsman can only investigate a procurement process which has taken place in the frame of ‘Best Practices’ where a complaint has been made to him and where, after having carried out a preliminary examination of the matter, it appears to the Ombudsman that the procurement process was or may have been:
- not carried out in conformity with the procurement instructions and/or rules established by ESA either in general or for the specific purposes of the procurement under investigation,
- improperly discriminatory,
- based on an undesirable procurement practice, or
- otherwise contrary to fair and sound procurement practices
In the frame of Contractual Matters between industry
During execution of Contracts the Ombudsman shall investigate disputes, in order to support communication between the parties, if such request has been made to him by at least one of the disputing parties. Should the issue be subject of scrutiny by the Dispute Adjudication Board (DAB), the investigation will be performed by the DAB in accordance with the terms of this Board.
Findings and Reports
In the frame of Procurement review
The findings of the Ombudsman shall be issued in the form required under Article 53.3 of ESA Procurement Regulations (ESA/REG/001).
In the frame of ‘Best Practices’
When the Ombudsman carries out an investigation, he must inform the complainant company and the company complained against of the result of the investigation and of his recommendation. When it appears to the Ombudsman that the response to a recommendation which he has made to a company is not satisfactory, he shall make a special report on the matter.
The Ombudsman shall publish an Annual report summarizing his activities and cases dealt with together with general conclusions and recommendations resulting from his involvement under each category of competence. This report will be presented to the Industrial Policy Committee.
Last update: 27 February 2013