Like any Intergovernmental Organisations, the Agency, under the terms of Article XV of the ESA Convention and its Annex I, benefits from what is commonly referred to under international public law as Privileges and Immunities and more particularly, under Article IV of its Annex I, of immunity from jurisdiction and execution.
The Agency spending some 90% of its annual budget through procurement, its Member States decided in 2008 that economic operators which have a demonstrated direct interest in an Agency’s procurement and which claim a potential loss due to an alleged procedural breach of the Agency’s Procurement Regulations should be provided with a review procedure seeking to ensure full respect for their right of an effective remedy and fair hearing. This review procedure and the Agency’s Procurement Regulations which contains them were to be aligned on the internationally recognised public procurement practises that are the UNCITRAL model law on Public Procurement and the WTO GPA in so far as they preserved the specific needs necessary for the Agency to carry out the objectives set under its Convention and Annexes, especially in the field of Industrial Policy.
The procurement review procedure established in the Agency’s Procurement Regulations ESA/REG/001, rev.4, and its Annexes is found namely under:
- Part VI: Review;
- Annex V: Implementing Instruction concerning the Establishment and Proceedings of the ESAProcurement Review Board and,
- Annex VI: Implementing Instruction concerning the European Space Agency’s ProcurementReview Procedure.
The review consists of a three-tier mechanism, as follows:
- First, the claim must be submitted to the Head of the Agency’s Procurement Department.
- Next, the decision by the Head of the Agency’s Procurement Department in response to theclaim may be challenged in front of the Agency’s Industrial Ombudsman. This will result in arecommendation by the Industrial Ombudsman, followed by a decision by the Head of theAgency’s Procurement Department in response to such recommendation.
- Third, this subsequent decision by the Head of the Agency’ s Procurement Department maybe challenged in front of the Procurement Review Board.
The Procurement Review Board consists of four members external to the Agency with proven legal and practical experience in the field of public procurement nominated directly by the Council of ESA. They may not be members of the staff of the Agency, nor of delegations of ESA Member States, Associate Member States or Cooperating States. One member is nominated upon proposal by the Director General, two members are nominated upon proposal by industry out of which one is proposed by SMEs, and one member is nominated upon proposal by the Industrial Policy Committee Chair.
Where as a result of the review procedure a final and binding decision grants compensation to a claimant for the loss incurred due to a procedural breach of the Procurement Regulations by the
Agency, such compensation is limited to the cost of tender preparation and the costs incurred for protest within the limit of 100 000 Euros and must be executed by the Agency.
On the right navigation bar links to the following documents are provided:
- The Agency’s Procurement Regulations containing the procurement review procedure
- Decisions by the Procurement Review Board