The Ombudsman is competent for:

• Facilitating the resolution of disputes among industry in the frame of ESA's project procurements and technology development procurements, in order to ensure that all contractors are given a fair opportunity of participation in ESA Programmes.
• Listening to concerns from industry about specific issues of competitiveness/competence and consulting the appropriate persons within ESA to resolve such concerns before they become a major problem.
• Facilitating communications between bidders, potential bidders, contractors and industry representatives in the resolution of matters arising in the course of an Agency's procurement.

The request for the intervention of the Ombudsman is only accepted from companies which substantiate their concerns on the grounds of the regulations governing the Agency's procurements.

The Ombudsman is not competent to receive complaints concerning disputes between the Agency and industry. He is not competent for investigating complaints based on questions of 'industrial return and geographical distribution'.

The Ombudsman shall not participate in the evaluation of proposals, the source selection process, or the adjudication of formal contracts disputes.

Appointment

The Ombudsman is independent in the performance of his functions. For the purpose of exercising this function, he is granted the status of Expert for the Agency.

A senior officer of the Agency's Contracts Department and a senior technical officer designated by the Director General support the Ombudsman in his investigations when so required by him.

Investigation

Any company requesting the intervention of the Ombudsman shall in parallel notify the Head of the ESA's Contracts Department.

The Ombudsman can only investigate a procurement process where a complaint has been made to him and, having carried out a preliminary examination of the matter, it appears to him that the procurement process was or may have been:

• Not carried out in conformity with the procurement instructions and/or rules established by the Agency 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.

Conduct of investigation

All investigations shall be carried out in strict confidentiality. When conducting an investigation the Ombudsman may call for and collect all relevant facts to resolve such 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 source selection and proprietary information, the collection of which will be co-ordinated through the designated ESA support staff, and
• Will be granted access to all technical specifications and requirements either established by the Agency or by the company carrying out the procurement in the frame of an Agency programme.

Findings and reports

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 proposed recommendations.

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 to the Head of the ESA's Contracts Department.

Although not competent to receive complaints concerning disputes between the Agency and Industry, should the findings of the Ombudsman conclude that the situation was caused by actions or omissions of the Agency he shall first report the matter to the Head of the ESA's Contracts Department.