The best practices ITTs published by "Entities"
In the frame of its major procurements, ESA has persistently been driven by the objective of ensuring fairness of competition at all levels and in particular between prime contractors and subcontractors.
ESA has therefore adopted in 2005 a unique set of rules to be known as the Best Practices for the Selection of Subcontractors by Prime Contractors in the frame of ESA's Major Procurements .. Such set of rules has been 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 provide a minimum set of requirements to be implemented by a Prime Contractor or Subcontractor during the selection of subcontractors aiming at guaranteeing 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, and 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 the ESA's Invitations to Tender/Requests for Quotation (ITT’s/RFQ’s) for the selection of the Prime Contractor and therefore require 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 20,000,000, these requirements are not to be construed as being restricted to such procurements and may be applied in the frame of any procurement, independent of its nature or magnitude, should ESA feel it adequate in order to achieve the fairness of competition .and in a such a way that it will not bring unnecessary burden on potential tenderers.
The General Principles are as follows:
- 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 his own staff;