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28/08/2014 2243 views 1 likes
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  • The function of Industrial Ombudsman for ESA (IOE) has existed since 2000
  • Original focus: Industry-to-Industry relations in ESA procurements
    • facilitating appeal cases in ESA “Best Practices”
    • offering mediation in industrial disputes

 

  • Since 2009, also ESA-to-Industry relations have been taken into account; independent monitoring within the ESA procurement review mechanism
    • investigating procedural breach of ESA Procurement Regulations

 

  • Keywords: independence, confidentiality, fairness, transparency, impartiality and non-discrimination

1 - Best Practices

  • The Ombudsman can only investigate a procurement process that has taken place within the framework 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

 

General Principle of Best Practices

  • The Industrial Core Team (Prime & Co/Sub-Co’s) is responsible for selection of their subcontractors
  • Involvement of ESA at each stage of the selection of subcontractors in order to ensure the fairness of the competition and impartiality of the evaluation
  • In case the Issuing Company (or affiliation) submits a bid, the evaluation is performed by the next independent level in the contract hierarchy (Prime or ESA)
  • Issue of ITTs with ESA’s procurement tool for External Entities (EMITS EE)
  • The ESA Ombudsman has been formally established as a facilitator in case of disputes between companies linked to an ESA procurement
  • The Ombudsman is not competent to receive and investigate complaints based on questions of Industrial Return and Geographical Distribution.

 

Procurement Rules in Best Practices

  • The ESA (Code of) “Best Practices for the selection of Subcontractors in the frame of ESA’s Major Procurements” with its two appendices (ESA/IPC(2012)65, rev.2)
  • General Conditions of Tender for ESA Contracts (Annex IV to ESA/REG/001, rev.3)
    • applicable (as amended by the Special Conditions of Tender (SCT)) during proposal preparation; in case of conflict the SCT prevails
  • General Clauses and Conditions for ESA Contracts (ESA/REG/002, rev. 1)
    • applicable as amended by the Draft Contract

 

The above documents are available on EMITS under "Reference Documentation" ---> "Administrative Documents"

 

Best Practices: Procurement Process

  1. Intended ITT (Abstract) Issued on EMITS *
  2. Pre-TEB (Pre-Tender Evaluation Board)
  3. ITT on EMITS EE (nominal response time 6 weeks) *
  4. Closing date – Tender Opening Board (TOB) *
  5. TEB *
  6. Concurrence Prime/ESA on recommendation of the TEB (or Senior Procurement Board)
  7. Negotiation with winner
  8. Notification to other bidders *

* Possibility for Ombudsman Intervention

 

Best Practices:  ITT Preparation Phase

  • TEB Nomination with ESA participation 
  • Intended ITT (Abstract) issued on EMITS EE (External Entity): normally minimum 2 weeks before ITT publication (with price range, list of participating countries, abstract – activity description)
  • Pre-TEB: finalization of ITT package and agreement on evaluation criteria and weighting factors
  • Pre-TEB also checks that all applicable industrial policy and geographical return requirements are correctly reflected

 

ConclusionITT Publication on EMITS EE authorized by ESA

----> Ombudsman Intervention may be requested

 

Best Practices: Bidding period phase

  • Bidding period (nominal response time 30 working days)
  • Clarifications not later than ten working days before closing date
  • Closing date & tender submission; in principle, no extension

 

Conclusion: Admissibility of tenders/TOB

  • TOB verifies that the tender has been dispatched on time
  • Typical criterion: Key Acceptance Factors (special SCT form)
  • Typical criterion: Declaration on compliances (special SCT form)
  • Failure to provide these type of forms filled in and signed may result in the tender non admissibility for evaluation. 
  • No evidence of major non-compliances, otherwise rejection of tender by TOB
  • Debriefing upon request in case of rejection

 

----> Ombudsman Intervention may be requested

 

Best Practices: Evaluation phase

  • In principle, Tender Evaluation Board (TEB) led by the issuing company with ESA participation 
  • In case the issuing company, or an affiliated company, submits a bid, the evaluation will be performed by the next independent level in the contract hierarchy (Prime or ESA)
  • Evaluation in accordance with
    • agreed criteria and weighting factors (published as annex to SCOT at the time of ITT publication
    • Tender Evaluation Manual (Appendix 1 to ESA Code of Best Practices)
  • Price and geographical return requirements not part of evaluation, considered only in the overall assessment in the conclusion of the TEB report

 

Conclusion: TEB makes a recommendation----> According to ESA procurement rules as of today Ombudsman intervention is not feasible at this stage as result is not yet notified

Best Practices: Selection & Negotiation

  • Recommendation of the TEB of Issuing company to ESA
  • ESA decision within 5 working days of recommendation of issuing company
  • Concurrence between Prime and ESA, or Senior Procurement Board (SPB)
  • Negotiation with winner(s)

Conclusion: Award of subcontract

  • Notification to unsuccessful tenderers 5 working days from final decision
  • TEB Report extract as per ESA Procurement Rules
  • De-briefing upon request

----> Ombudsman Intervention may be requested, except on selection based on geographical return

2 - Industrial Disputes

Contractual Matters between Industry

  • During execution of Contracts the Ombudsman will investigate disputes, if such request has been made to him by at least one of the disputing parties
  • His role is to be an intermediary to support communication between the parties
  • The validity of the complaint needs to be confirmed by the Ombudsman after a preliminary investigation of the dossier. The Ombudsman will then request prior approval to contact the opposite party for a mediation attempt.
  • 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

 

ESA Code of Conduct for Industrial Activities

  • This Code may be called upon when a company is requesting support of the ESA Ombudsman (Appendix 2 of Best Practices; ESA/IPC(2012)65, rev.2)
  • It defines the general principles of good business conduct:  
    • Mutual obligations between Prime Contractor and Subcontractors (confidentiality, mutual information, transparency, intense cooperation)
    • Obligations of Prime Contractor towards subcontractor: obligations of careful selection (selection on fair and transparent basis), obligation of proportionate flow-down of the provision of the prime contract to the subcontracts, obligation to inform subcontractors adequately, obligation to pay in reasonable time.  
    • Obligations of Subcontractor towards Prime Contractor: obligation to provide advice and technical assistance to the Prime Contractor, draw the prime’s attention to possible issues or difficulties
  • Some principles of this code are already defined in the applicable contract conditions (e.g.: time-limits for payment)

3 - ESA Procedural Breach

Procurement Review Procedure

  • Contrary to Best Practices the Ombudsman intervention in procurements at ESA level is, according to the Procurement Regulations, restricted to investigations of alleged procedural breaches of these Regulations
  • Investigations are conducted in accordance with the procedure laid down in Article 53 of the ESA Procurement Regulations (ESA/REG/001)
  • In this context the Ombudsman is granted access to ESA internal papers and related documentation including the proceedings of the Tender Evaluation Boards

Procurement Review Process

ESA/REG/001, Articles 50 to 53

When to place a claim?

Claims (alleging a procedural breach) should be filed according to the stage at which they have been identified by the claimant. Four cases can be distinguished:

  • Case 1. The breach is apparent and is identified by the claimant before the ITT closing date (Art.50.1.a)
  • Case 2. The breach is identified after the ITT closing date and before the opening of the tenders (Art. 50.1.b)
  • Case 3. The breach is identified after the opening of the tenders (Art.50.2)
  • Case 4. The tender is not accepted for evaluation, or the tender is unsuccessful (after TEB time). A debriefing is required (Art. 50.3)

Time to file the claim:

  • Case 1, as soon as possible and before the ITT closing date
  • Case 2, no more than 10 days after the breach is identified
  • Case 3, no more than 10 days after the breach is identified
  • Case 4, no more than 5 days after the debriefing

 

 

Claims must be filed to Head of the ESA Procurement Department (HPD)
(Unless the claim is against a decision taken by the HPD; in that case proceed directly to the Ombudsman)

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