Delegation of the European Union to Tajikistan

EEAS-DELBWA-04/01/2020-SER-FWC PAINTING SERVICES

Open
Works
€15.000 - €60.000

The Delegation of the European Union to Botswana is launching a call for tenders using a Service Framework Contract for painting services.

If you are interested to participate, you may express your interest by sending an email to the contact e-mail mentioned below, following the instructions on the webpage How to apply for an EEAS call for tenders.

 

EUROPEAN UNION

DELEGATION TO THE REPUBLIC OF BOTSWANA

 

 

Head of Delegation

 

 

 

Gaborone,

Ares(2020)

 

Dear Sir/Madam,

 

Subject:         EEAS-DELBWA-04/01/2020-SER-FWC PAINTING SERVICES

 

  1. The European Union Delegation to the Republic of Botswana invites you to submit a tender for the contract referred to above. The procurement documents consist in this invitation letter, the tender specifications with their annexes, the draft contract and the instructions on the procedure "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" at the following link: https://eeas.europa.eu/headquarters/headquarters-homepage/8989_en
  2. If you are interested in this contract, you should submit a tender in one of the official languages of the European Union.

You must submit your tender exclusively on paper in one original and two (2) copies.  The time limit for submission of the tender is 31 January @ 12:00.  You must use one of the means of submission listed below. Submission is understood as the time at which the tenderer hands over the tender to the post office or courier service or at the reception of the Delegation.

Means of submission

Time limit

Evidence

Address for delivery

Post

Courier

 

24:00

 

Postmark

Deposit slip of courier service

CALL FOR TENDERS

EEAS-DELBWA-…….-SER-FWC 2020 PAINTING SERVICES

EU Delegation to the Republic of Botswana

For the attention of the Head of Administration

Robinson Road, Plot 758

Gaborone

 

P.O Box 1253

Gaborone

In person (hand delivery)

13:00 local time in Botswana

Proof of receipt, signed and dated by the agent at the reception of the Delegation

Hand delivery can be received from 08.00 to 16.00 Monday to Thursdays, from 08.00 to 12.00 on Fridays. The Delegation is closed on Saturdays, Sundays and official holidays of the contracting authority.

 

  1. The period of validity of the tender, during which tenderers may not modify the terms of their tenders in any respect, is three (3)  months from the date indicated in point
  2. Before the deadline of submission of the tender, any request for additional information must be made in writing to delegation-botswana-tenders@eeas.europa.eu

The contracting authority is not bound to reply to requests for additional information received less than five working days before the date of receipt of tenders indicated in point 3.

For more details, please refer to the document "Instructions applicable to negotiated procedure for (very) low and middle-value contracts ".

  1. An on-site visit is planned on 23 January 2020 at the following address: Robinson Road, Plot 758, Gaborone. Each tenderer shall send an email at delegation-botswana-tenders@eeas.europa.eu at the latest 4 calendar days prior to the visit to know the time that is allocated to each of them.

 

 

 

Jan Sadek
Authorizing Officer by Sub-Delegation

 

Annexes:

- Tender specifications, Annex I

- Technical specifications, Annex II

- Draft service framework contract

 

 

 

 

 

 

 

Annex 1 – technical tender

Statement of compliance with the tender documents

EEAS-04/01/2020-DELBWA-SER

 

 

I, .................... , the undersigned, being the authorised legal representative of [to be completed with the name of the tenderer; for joint tenders, this must include all members], hereby declare that we have examined and accept without reserve or restriction all the terms and conditions set out in the invitation to tender, in the tender specifications and in the draft purchase order for the tender procedure referred to above and, where appropriate, waive the tenderer's own general or specific terms and conditions. We offer to provide the services on the basis of our technical tender and our financial tender which do not diverge in any way from the requirements described in the tender documents as drafted by the contracting authority. Our tender complies with all the technical requirements indicated in the tender specifications.

We also undertake to respect these requirements scrupulously during the performance of the contract in case we become the awardee of the contract.

 

 

 

 

 

Name of the legal representative of the tenderer:

 

 

 

 

Signature:                                                                     Date:]

 

 

HEADING

 

 

 

 

 

 

 

 

 

SERVICE FRAMEWORK CONTRACT

NUMBER — EEAS-XXX- DELBWA-SER-FWC-2020

1. The [European Union (‘the Union’), represented by the European Union Delegation to Botswana and SADC (‘the contracting authority’), represented for the purposes of signing this framework contract by Mr Jan Sadek, Head of Delegation,

of the one part and

2. [Full official name]

[Official legal form ] [1]

[Statutory registration number][2]

[Full official address]

[VAT registration number]

(‘the contractor’), represented for the purpose of the signature of this framework contract by [forename, surname, function of legal representative and name of company in the case of a joint tender],

on the other part,

 

 

 

HAVE AGREED

 

to the special conditions, the general conditions for framework contracts for services and the following annexes:

Annex I –         Tender specifications (reference No [complete] of [insert date])

Annex II –        Contractor’s tender (reference No [complete] of [insert date])

Annex III –      Model for order form

which form an integral part of this framework contract (‘the FWC’).

This FWC sets out:

  1. the procedure by which the contracting authority may order services from the contractor;
  2. the provisions that apply to any specific contract which the contracting authority and the contractor may conclude under this FWC; and
  3. the obligations of the parties during and after the duration of this FWC.

All documents issued by the contractor (end-user agreements, general terms and conditions, etc.) except its tender are held inapplicable, unless explicitly mentioned in the special conditions of this FWC. In all circumstances, in the event of contradiction between this FWC and documents issued by the contractor, this FWC prevails, regardless of any provision to the contrary in the contractor’s documents.

 

 

 

Special Conditions

Order of priority of provisions

If there is any conflict between different provisions in this FWC, the following rules must be applied:

  1. The provisions set out in the special conditions take precedence over those in the other parts of the FWC.
  2. The provisions set out in the general conditions take precedence over those in the order form and specific contract (Annex III)
  3. The provisions set out in the order form and specific contract (Annex III) take precedence over those in the other annexes.
  4. The provisions set out in the tender specifications (Annex I) take precedence over those in the tender (Annex II).
  5. The provisions set out in the FWC take precedence over those in the specific contracts.

Any reference to specific contracts applies also to order forms.

Subject matter

The subject matter of the FWC is [short description of subject].

Entry into force and duration of the FWC

I.3.1    The FWC enters into force [on the date on which the last party signs it].

I.3.2    The implementation of the FWC cannot start before its entry into force.

I.3.3    The FWC is concluded for a period of xx months with effect from the date of its entry into force.

I.3.4    The parties must sign any specific contract before the FWC expires.

The FWC continues to apply to such specific contracts after its expiry. The services relating to such specific contracts must be performed no later than six months after the expiry of the FWC.

Type and implementation of the FWC

Type of the contract

The contracting authority awards a single FWC.

Period of provision of the services

The period for the provision of the services starts to run from the date on which the specific contract is signed by the last party.

Implementation of single FWC

The contracting authority orders services by sending the contractor a specific contract in paper format

Within five working days, the contractor must either:

- send the specific contract back to the contracting authority signed and dated; or

- send an explanation of why it cannot accept the order.

If the contractor repeatedly refuses to sign the specific contracts or repeatedly fails to send them back on time, the contractor may be considered in breach of its obligations under this FWC as set out in Article II.18.1 (c).

Prices

Maximum amount of the FWC and maximum prices

The maximum amount covering all services under this FWC is BWP  (amount in figures and in words). However, this does not bind the contracting authority to purchase for the maximum amount.

The maximum prices of the services are as listed in Annex II.

Price revision index

Price revision index is not applicable to this FWC.

Reimbursement of expenses

Reimbursement of expenses is not applicable to this FWC.

Payment arrangements

Pre-financing

Pre-financing is not applicable to this FWC.

Interim payment

Interim payment is not applicable to this FWC.

Payment of the balance

Balance payment is not applicable to this FWC.

Performance guarantee

        Performance guarantee is not applicable to this FWC.

Retention money guarantee

      Retention money guarantee is not applicable to this FWC.

Bank account

Payments must be made to the contractor’s bank account denominated in BWP, identified as follows:

Name of bank:

Full address of branch:

Exact denomination of account holder:

Full account number including bank codes:

IBAN code:

Communication details

For the purpose of this FWC, communications must be sent to the following addresses:

Contracting authority:

European Union Delegation to Botswana and SADC

Robinson Road, Plot 758

Postbox 1253, Gaborone

Email: Delegation-Botswana@eeas.europa.eu

 

٭٭٭

Contractor:

[Full name]

[Function]

[Company name]

[Full official address]

E-mail: [complete]

By derogation from this Article, different contact details for the contracting authority or the contractor may be provided in specific contracts.

Processing of personal data

Processing of personal data by the contracting authority

For the purpose of Article II.9.1,

  1. the data controller is the Head of the Delegation of the European Union to The Republic of Botswana and SADC.
  2. the data protection notice is available at:

https://eeas.europa.eu/sites/eeas/files/procurement_-_privacy_statement.pdf.

Processing of personal data by the contractor

This clause is not applicable to this FWC.

Exploitation of the results of the FWC

This clause is not applicable to this FWC.

Detailed list of modes of exploitation of the results

In accordance with Article II.13.1 whereby the Union acquires ownership of the results as defined in this FWC, including the tender specifications, these results may be used for any of the following modes of exploitation:

[a)        use for its own purposes

Licence or transfer of pre-existing rights

All pre-existing rights incorporated in the results, if any, are licensed to the Union as set out in Article II.13.2.

Provision of list of pre-existing rights and documentary evidence

The contractor must provide the contracting authority with a list of pre-existing rights as set Termination by either party

Applicable law and settlement of disputes

I.12.1  The FWC is governed by Union law, complemented, where necessary, by the law of The Republic of Botswana.

I.12.2  The courts of The Republic of Botswana have exclusive jurisdiction over any dispute regarding the interpretation, application or validity of the FWC.

I.13.1  This FWC is interinstitutional. The lead contracting authority acts on its own behalf and on behalf of the bodies listed in the title of the FWC as the contracting authorities, which provided the lead contracting authority with a power of attorney before FWC signature. The lead contracting authority signs the FWC and any amendments on behalf of itself and of all other contracting authorities.

I.13.2  Each contracting authority is responsible for the particular specific contracts it awards.

I.13.3  If the contractor has a complaint about the conclusion, performance or termination of a specific contract, the contractor remains bound by its obligations under the FWC and other specific contracts.

 

SIGNATURES

For the contractor,

[Company name/forename/surname/position]

 

Signature: _______________________

Done at [place], [date]

For the contracting authority,

[forename/surname/position]

 

Signature:_____________________

Done at [place], [date]

In duplicate in English.

 

GENERAL CONDITIONS FOR THE FRAMEWORK CONTRACT FOR SERVICES

Definitions

For the purpose of this FWC, the following definitions (indicated in italics in the text) apply:

‘Back office’: the internal system(s) used by the parties to process electronic invoices;

‘Confidential information or document’: any information or document received by either party from the other or accessed by either party in the context of the implementation of the FWC, that any of the parties has identified in writing as confidential. It may not include information that is publicly available;

‘Conflict of interest’: a situation where the impartial and objective implementation of the FWC by the contractor is compromised for reasons involving family, emotional life, political or national affinity, economic interest, or any other shared interest with the contracting authority or any third party related to the subject matter of the FWC;

‘Creator’: means any natural person who contributes to the production of the result;

‘EDI message’ (electronic data interchange): a message created and exchanged through the electronic transfer, from computer to computer, of commercial and administrative data using an agreed standard;

‘e-PRIOR’: the service-oriented communication platform that provides a series of web services and allows the exchange of standardised electronic messages and documents between the parties. This is done either through web services, with a machine-to-machine connection between the parties’ back office systems (EDI messages), or through a web application (the supplier portal). The Platform may be used to exchange electronic documents (e-documents) such as electronic requests for services, electronic specific contracts, electronic acceptance of services and electronic invoices between the parties. Technical specifications (i.e. the interface control document), details on access and user manuals are available at the following website: http://ec.europa.eu/dgs/informatics/supplier_portal/documentation/documentation_en.htm

‘Force majeure’: any unforeseeable, exceptional situation or event beyond the control of the parties that prevents either of them from fulfilling any of their obligations under the FWC. The situation or event must not be attributable to error or negligence on the part of the parties or on the part of the subcontractors and must prove to be inevitable despite their exercising due diligence. Defaults of service, defects in equipment or material or delays in making them available, labour disputes, strikes and financial difficulties may not be invoked as force majeure, unless they stem directly from a relevant case of force majeure;

‘Formal notification’ (or ‘formally notify’): form of communication between the parties made in writing by mail or email, which provides the sender with compelling evidence that the message was delivered to the specified recipient;

‘Fraud’: any intentional act or omission affecting the Union’s financial interests relating to the use or presentation of false, incorrect or incomplete statements or documents or to non-disclosure of information in violation of a specific obligation;

‘Implementation of the FWC’: the purchase of services envisaged in the FWC through the signature and performance of specific contracts;

‘Interface control document’: the guideline document which lays down the technical specifications, message standards, security standards, checks of syntax and semantics, etc. to facilitate machine-to-machine connection. This document is updated on a regular basis;

‘Irregularity’: any infringement of a provision of Union law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the Union’s budget.

‘Notification’ (or ‘notify’): form of communication between the parties made in writing including by electronic means;

‘Order form’: a simplified form of specific contract by which the contracting authority orders services under this FWC;

‘Performance of a specific contract’: the execution of tasks and delivery of the purchased services by the contractor to the contracting authority;

‘Personnel’: persons employed directly or indirectly or contracted by the contractor to implement the FWC;

‘Pre-existing material’: any material, document, technology or know-how which exists prior to the contractor using it for the production of a result in the implementation of the FWC;

‘Pre-existing right’: any industrial and intellectual property right on pre-existing material; it may consist in a right of ownership, a licence right and/or right of use belonging to the contractor, the creator, the contracting authority as well as to any other third parties;

‘Professional conflicting interest’: a situation in which the contractor’s previous or ongoing professional activities affect its capacity to implement the FWC or to perform a specific contract to an appropriate quality standard.

‘Related person’: any person who has the power to represent the contractor or to take decisions on its behalf;

‘Request for services’: a document from the contracting authority requesting that the contractors in a multiple FWC provide a specific tender for services whose terms are not entirely defined under the FWC;

‘Result’: any intended outcome of the implementation of the FWC, whatever its form or nature, which is delivered and finally or partially approved by the contracting authority. A result may be further defined in this FWC as a deliverable. A result may, in addition to materials produced by the contractor or at its request, also include pre-existing materials;

‘Specific contract’: a contract implementing the FWC and specifying details of a service to be provided;

‘Substantial error’: any infringement of a contract provision resulting from an act or omission, which causes or might cause a loss to the Union’s budget.

‘Supplier portal’: the e-PRIOR portal, which allows the contractor to exchange electronic business documents, such as invoices, through a graphical user interface; its main features can be found in the supplier portal overview document available on: http://ec.europa.eu/dgs/informatics/supplier_portal/doc/um_supplier_portal_overview.pdf

Roles and responsibilities in the event of a joint tender

In the event of a joint tender submitted by a group of economic operators and where the group does not have legal personality or legal capacity, one member of the group is appointed as leader of the group.

Severability

Each provision of this FWC is severable and distinct from the others. If a provision is or becomes illegal, invalid or unenforceable to any extent, it must be severed from the remainder of the FWC. This does not affect the legality, validity or enforceability of any other provisions of the FWC, which continue in full force and effect. The illegal, invalid or unenforceable provision must be replaced by a legal, valid and enforceable substitute provision which corresponds as closely as possible with the actual intent of the parties under the illegal, invalid or unenforceable provision. The replacement of such a provision must be made in accordance with Article II.11. The FWC must be interpreted as if it had contained the substitute provision as from its entry into force.

Provision of services

II.4.1               Signature of the FWC does not guarantee any actual purchase. The contracting authority is bound only by specific contracts implementing the FWC.

II.4.2   The contractor must provide services of high quality standards, in accordance with the state of the art in the industry and the provisions of this FWC, in particular the tender specifications and the terms of its tender.

II.4.3   The contractor must comply with the minimum requirements provided for in the tender specifications. This includes compliance with applicable obligations under environmental, social and labour law established by Union law, national law and collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU[3], compliance with data protection obligations resulting from Regulation (EU) 2016/679[4] and Regulation (EU) 2018/1725[5].

II.4.4   The contractor must obtain any permit or licence required in the State where the services are to be provided.

II.4.5   All periods specified in the FWC are calculated in calendar days, unless otherwise specified.

II.4.6   The contractor must not present itself as a representative of the contracting authority and must inform third parties that it is not part of the European public service.

II.4.7   The contractor is responsible for the personnel who carry out the services and exercises its authority over its personnel without interference by the contracting authority. The contractor must inform its personnel that:

  1. they may not accept any direct instructions from the contracting authority; and
  2. their participation in providing the services does not result in any employment or contractual relationship with the contracting authority.

II.4.8   The contractor must ensure that the personnel implementing the FWC and any future replacement personnel possess the professional qualifications and experience required to provide the services, as the case may be on the basis of the selection criteria set out in the tender specifications.

II.4.9   At the contracting authority’s reasoned request, the contractor must replace any member of personnel who:

  1. does not have the expertise required to provide the services; or
  2. has caused disruption at the premises of the contracting authority.

The contractor bears the cost of replacing its personnel and is responsible for any delay in providing the services resulting from the replacement of personnel.

II.4.10 The contractor must record and report to the contracting authority any problem that affects its ability to provide the services. The report must describe the problem, state when it started and what action the contractor is taking to resolve it.

Communication between the parties

Form and means of communication

Any communication of information, notices or documents under the FWC must:

  1. be made in writing in paper or electronic format in the language of the contract;
  2. bear the FWC number and, if applicable, the specific contract number;
  3. be made using the relevant communication details set out in Article I.8; and
  4. be sent by mail, email or, for the documents specified in the special conditions, via e-PRIOR.

If a party requests written confirmation of an e-mail within a reasonable time, the other party must provide an original signed paper version of the communication as soon as possible.

The parties agree that any communication made by email has full legal effect and is admissible as evidence in judicial proceedings.

Date of communications by mail and email

Any communication is deemed to have been made when the receiving party receives it, unless this FWC contract refers to the date when the communication was sent.

E-mail is deemed to have been received by the receiving party on the day of dispatch of that e-mail, provided that it is sent to the e-mail address indicated in Article I.8. The sending party must be able to prove the date of dispatch. In the event that the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the communication by email or mail. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline.

Mail sent to the contracting authority is deemed to have been received by the contracting authority on the date on which the department responsible referred to in Article I.8 registers it.

Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message was delivered to the specified recipient.

Submission of e-documents via e-PRIOR

  1. If provided for in the special conditions, the exchange of electronic documents (e-documents) such as requests for services, specific contracts and invoices between the parties is automated through the use of the e-PRIOR platform. This platform provides two possibilities for such exchanges: either through web services (machine-to-machine connection) or through a web application (the supplier portal).
  2. The contracting authority takes the necessary measures to implement and maintain electronic systems that enable the supplier portal to be used effectively.
  3. In the case of machine-to-machine connection, a direct connection is established between the parties’ back offices. In this case, the parties take the measures necessary on their side to implement and maintain electronic systems that enable the machine-to-machine connection to be used effectively. The electronic systems are specified in the interface control document. The contractor (or leader in the case of a joint tender) must take the necessary technical measures to set up a machine-to-machine connection and at its own cost.
  4. If communication via the supplier portal or via the web services (machine-to-machine connection) is hindered by factors beyond the control of one party, it must notify the other immediately and the parties must take the necessary measures to restore this communication.
  5. If it is impossible to restore the communication within two working days, one party must notify the other that alternative means of communication specified in Article II.5.1 will be used until the supplier portal or the machine-to-machine connection is restored.
  6. When a change in the interface control document requires adaptations, the contractor (or leader in the case of a joint tender) has up to six months from receipt of the notification to implement this change. This period can be shortened by mutual agreement of the parties. This period does not apply to urgent measures required by the security policy of the contracting authority to ensure integrity, confidentiality and non-repudiation of information and the availability of e-PRIOR, which must be applied immediately.

Validity and date of e-documents

  1. The parties agree that any e-document, including related attachments exchanged via e-PRIOR:
  1. is considered as equivalent to a paper document;
  2. is deemed to be the original of the document;
  3. is legally binding on the parties once an e-PRIOR authorised person has performed the ‘sign’ action in e-PRIOR and has full legal effect; and
  4. constitutes evidence of the information contained in it and is admissible as evidence in judicial proceedings.
  1. The parties expressly waive any rights to contest the validity of such a document solely on the grounds that communications between the parties occurred through e-PRIOR or that the document has been signed through e-PRIOR. If a direct connection is established between the parties’ back offices to allow electronic transfer of documents, the parties agree that an e-document, sent as mentioned in the interface control document, qualifies as an EDI message.
  2. If the e-document is dispatched through the supplier portal, it is deemed to have been legally issued or sent when the contractor (or leader in the case of a joint tender) is able to successfully submit the e-document without any error messages. The generated PDF and XML document for the e-document are considered as a proof of receipt by the contracting authority.
  3. In the event that an e-document is dispatched using a direct connection established between the parties’ back offices, the e-document is deemed to have been legally issued or sent when its status is ‘received’ as defined in the interface control document.
  4. When using the supplier portal, the contractor (or leader in the case of a joint tender) can download the PDF or XML message for each e-document for one year after submission. After this period, copies of the e-documents are no longer available for automatic download from the supplier portal.

 Authorised persons in e-PRIOR

The contractor submits a request for each person who needs to be assigned the role of ‘user’ in e-PRIOR. These persons are identified by means of the European Communication Authentication Service (ECAS) and authorised to access and perform actions in e-PRIOR within the permissions of the user roles that the contracting authority has assigned to them.

User roles enabling these e-PRIOR authorised persons to sign legally binding documents such as specific tenders or specific contracts are granted only upon submission of supporting documents proving that the authorised person is empowered to act as a legal representative of the contractor.

Liability

II.6.1   The contracting authority is not liable for any damage or loss caused by the contractor, including any damage or loss to third parties during or as a consequence of implementation of the FWC.

II.6.2   If required by the relevant applicable legislation, the contractor must take out an insurance policy against risks and damage or loss relating to the implementation of the FWC. It must also take out supplementary insurance as reasonably required by standard practice in the industry. Upon request, the contractor must provide evidence of insurance coverage to the contracting authority.

II.6.3   The contractor is liable for any loss or damage caused to the contracting authority during or as a consequence of implementation of the FWC, including in the event of subcontracting, but only up to an amount not exceeding three times the total amount of the relevant specific contract. However, if the damage or loss is caused by the gross negligence or wilful misconduct of the contractor or of its personnel or subcontractors, the contractor is liable for the whole amount of the damage or loss.

II.6.4   If a third party brings any action against the contracting authority in connection with the implementation of the FWC, including any action for alleged breach of intellectual property rights, the contractor must assist the contracting authority in the legal proceedings, including by intervening in support of the contracting authority upon request.
If the contracting authority’s liability towards the third party is established and that such liability is caused by the contractor during or as a consequence of the implementation of the FWC, Article II.6.3 applies.

II.6.5   If the contractor is composed of two or more economic operators (i.e. who submitted a joint tender), they are all jointly and severally liable to the contracting authority for the implementation of the FWC.

II.6.6   The contracting authority is not liable for any loss or damage caused to the contractor during or as a consequence of implementation of the FWC, unless the loss or damage was caused by wilful misconduct or gross negligence of the contracting authority.

Conflict of interest and professional conflicting interests

II.7.1   The contractor must take all the necessary measures to prevent any situation of conflict of interest or professional conflicting interest.

II.7.2   The contractor must notify the contracting authority in writing as soon as possible of any situation that could constitute a conflict of interest or a professional conflicting interest during the implementation of the FWC. The contractor must immediately take action to rectify the situation.

The contracting authority may do any of the following:

  1. verify that the contractor’s action is appropriate;
  2. require the contractor to take further action within a specified deadline;
  3. decide not to award a specific contract to the contractor.

II.7.3   The contractor must pass on all the relevant obligations in writing to:

  1. its personnel;
  2.  any natural person with the power to represent it or take decisions on its behalf;
  3. third parties involved in the implementation of the FWC, including subcontractors.

The contractor must also ensure that the persons referred to above are not placed in a situation which could give rise to conflicts of interest.

Confidentiality

II.8.1.  The contracting authority and the contractor must treat with confidentiality any information or documents, in any format, disclosed in writing or orally, relating to the implementation of the FWC and identified in writing as confidential.

II.8.2.  Each party must:

(a)   not use confidential information or documents for any purpose other than to perform its obligations under the FWC or a specific contract without the prior written agreement of the other party;

(b)   ensure the protection of such confidential information or documents with the same level of protection as its own confidential information or documents and in any case with due diligence;

(c)   not disclose, directly or indirectly, confidential information or documents to third parties without the prior written agreement of the other party.

II.8.3   The confidentiality obligations set out in this Article are binding on the contracting authority and the contractor during the implementation of the FWC and for as long as the information or documents remain confidential unless:

(a)   the disclosing party agrees to release the receiving party from the confidentiality obligation earlier;

(b)   the confidential information or documents become public through other means than a breach of the confidentiality obligation;

(c)   the applicable law requires the disclosure of the confidential information or documents.

II.8.4   The contractor must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the implementation of the FWC a commitment that they will comply with this Article. At the request of the contracting authority, the contractor must provide a document providing evidence of this commitment.

Processing of personal data

II.9.1   Processing of personal data by the contracting authority

Any personal data included in or relating to the FWC, including its implementation, shall be processed in accordance with Regulation (EU) 2018/1725. Such data shall be processed solely for the purposes of the implementation, management and monitoring of the FWC by the data controller.

 

The contractor or any other person whose personal data is processed by the data controller in relation to this FWC has specific rights as a data subject under Chapter III (Articles 14-25) of Regulation (EU) 2018/1725, in particular the right to access, rectify or erase their personal data and the right to restrict or, where applicable, the right to object to processing or the right to data portability.

 

Should the contractor or any other person whose personal data is processed in relation to this FWC have any queries concerning the processing of its personal data, it shall address itself to the data controller. They may also address themselves to the Data Protection Officer of the data controller. They have the right to lodge a complaint at any time to the European Data Protection Supervisor.

 

Details concerning the processing of personal data are available in the data protection notice referred to in Article I.9.

II.9.2   Processing of personal data by the contractor

The processing of personal data by the contractor shall meet the requirements of Regulation (EU) 2018/1725 and be processed solely for the purposes set out by the controller.

The contractor shall assist the controller for the fulfilment of the controller’s obligation to respond to requests for exercising rights of person whose personal data is processed in relation to this FWC as laid down in Chapter III (Articles 14-25) of Regulation (EU) 2018/1725. The contractor shall inform without delay the controller about such requests.

The contractor may act only on documented written instructions and under the supervision of the controller, in particular with regard to the purposes of the processing, the categories of data that may be processed, the recipients of the data and the means by which the data subject may exercise its rights.

The contractor shall grant personnel access to the data to the extent strictly necessary for the implementation, management and monitoring of the FWC. The contractor must ensure that personnel authorised to process personal data has committed itself to confidentiality or is under appropriate statutory obligation of confidentiality in accordance with the provisions of Article II.8.

 

The contractor shall adopt appropriate technical and organisational security measures, giving due regard to the risks inherent in the processing and to the nature, scope, context and purposes of processing, in order to ensure, in particular, as appropriate:

 

  1. the pseudonymisation and encryption of personal data;
  2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
  4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;
  5. measures to protect personal data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to personal data transmitted, stored or otherwise processed.

The contractor shall notify relevant personal data breaches to the controller without undue delay and at the latest within 48 hours after the contractor becomes aware of the breach. In such cases, the contractor shall provide the controller with at least the following information:

 

  1. nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
  2. likely consequences of the breach;
  3. measures taken or proposed to be taken to address the breach, including, where appropriate, measures to mitigate its possible adverse effects.

The contractor shall immediately inform the data controller if, in its opinion, an instruction infringes Regulation (EU) 2018/1725, Regulation (EU) 2016/679, or other Union or Member State data protection provisions as referred to in the tender specifications.

The contractor shall assist the controller for the fulfilment of its obligations pursuant to Article 33 to 41 under Regulation (EU) 2018/1725 to:

  1. ensure compliance with its data protection obligations regarding the security of the processing, and  the confidentiality of electronic communications and directories of users;
  2. notify a personal data breach to the European Data Protection Supervisor;
  3. communicate a personal data breach without undue delay to the data subject, where applicable;
  4. carry out data protection impact assessments and prior consultations as necessary.

The contractor shall maintain a record of all data processing operations carried on behalf of the controller, transfers of personal data, security breaches, responses to requests for exercising rights of people whose personal data is processed and requests for access to personal data by third parties.

The contracting authority is subject to Protocol 7 of the Treaty on the Functioning of the European Union on the privileges and immunities of the European Union, particularly as regards the inviolability of archives (including the physical location of data and services as set out in Article I.9.2) and data security, which includes personal data held on behalf of the contracting authority in the premises of the contractor or subcontractor.

The contractor shall notify the contracting authority without delay of any legally binding request for disclosure of the personal data processed on behalf of the contracting authority made by any national public authority, including an authority from a third country. The contractor may not give such access without the prior written authorisation of the contracting authority.

The duration of processing of personal data by the contractor will not exceed the period referred to in Article II.24.2. Upon expiry of this period, the contractor shall, at the choice of the controller, return, without any undue delay in a commonly agreed format, all personal data processed on behalf of the controller and the copies thereof or shall effectively delete all personal data unless Union or national law requires a longer storage of personal data.

For the purpose of Article II.10, if part or all of the processing of personal data is subcontracted to a third party, the contractor shall pass on the obligations referred to in Articles I.9.2 and II.9.2 in writing to those parties, including subcontractors. At the request of the contracting authority, the contractor shall provide a document providing evidence of this commitment.

Subcontracting

II.10.1   The contractor must not subcontract and have the FWC implemented by third parties beyond the third parties already mentioned in its tender without prior written authorisation from the contracting authority.

II.10.2   Even if the contracting authority authorises subcontracting, the contractor remains bound by its contractual obligations and is solely responsible for the implementation of the FWC.

II.10.3   The contractor must ensure that the subcontract does not affect the rights of the contracting authority under this FWC, particularly those under Articles II.8, II.13 and II.24.

II.10.4   The contracting authority may request the contractor to replace a subcontractor found to be in a situation provided for in points (d) and (e) of Article II.18.1.

Amendments

II.11.1   Any amendment to the FWC or a specific contract must be made in writing before all contractual obligations have been fulfilled. A specific contract does not constitute an amendment to the FWC.

II.11.2   Any amendment must not make changes to the FWC or a specific contract that might alter the initial conditions of the procurement procedure or result in unequal treatment of tenderers or contractors.

Assignment

II.12.1   The contractor must not assign any of the rights and obligations arising from the FWC, including claims for payments or factoring, without prior written authorisation from the contracting authority. In such cases, the contractor must provide the contracting authority with the identity of the intended assignee.

II.12.2   Any right or obligation assigned by the contractor without authorisation is not enforceable against the contracting authority.

Intellectual property rights

Ownership of the rights in the results

The Union acquires irrevocably worldwide ownership of the results and of all intellectual property rights under the FWC. The intellectual property rights so acquired include any rights, such as copyright and other intellectual or industrial property rights, to any of the results and to all technological solutions and information created or produced by the contractor or by its subcontractor in implementation of the FWC. The contracting authority may exploit and use the acquired rights as stipulated in this FWC. The Union acquires all the rights from the moment the contracting authority approves the results delivered by the contractor. Such delivery and approval are deemed to constitute an effective assignment of rights from the contractor to the Union.

The payment of the price includes any fees payable to the contractor about the acquisition of ownership of rights by the Union including for all forms of exploitation and of use of the results.

Licensing rights on pre-existing materials

Unless provided otherwise in the special conditions, the Union does not acquire ownership of pre-existing rights under this FWC.

The contractor licenses the pre-existing rights on a royalty-free, non-exclusive and irrevocable basis to the Union, which may use the pre-existing materials for all the modes of exploitation set out in this FWC or in specific contracts. All pre-existing rights are licensed to the Union from the moment the results are delivered and approved by the contracting authority.

The licensing of pre-existing rights to the Union under this FWC covers all territories worldwide and is valid for the duration of intellectual property rights protection.

The payment of the price as set out in the specific contracts is deemed to also include any fees payable to the contractor in relation to the licensing of pre-existing rights to the Union, including for all forms of exploitation and of use of the results.

Where implementation of the FWC requires that the contractor uses pre-existing materials belonging to the contracting authority, the contracting authority may request that the contractor signs an adequate licence agreement. Such use by the contractor will not entail any transfer of rights to the contractor and is limited to the needs of this FWC.

Exclusive rights

The Union acquires the following exclusive rights:

  1. reproduction: the right to authorise or prohibit direct or indirect, temporary or permanent reproduction of the results by any means (mechanical, digital or other) and in any form, in whole or in part;
  2. communication to the public: the exclusive right to authorise or prohibit any display, performance or communication to the public, by wire or wireless means, including the making available to the public of the results in such a way that members of the public may access them from a place and at a time individually chosen by them; this right also includes the communication and broadcasting by cable or by satellite;
  3. distribution: the exclusive right to authorise or prohibit any form of distribution of results or copies of the results to the public, by sale or otherwise;
  4. rental: the exclusive right to authorise or prohibit rental or lending of the results or of copies of the results;
  5. adaptation: the exclusive right to authorise or prohibit any modification of the results;
  6. translation: the exclusive right to authorise or prohibit any translation, adaptation, arrangement, creation of derivative works based on the results, and any other alteration of the results, subject to the respect of moral rights of authors, where applicable;
  7. where the results are or include a database: the exclusive right to authorise or prohibit the extraction of all or a substantial part of the contents of the database to another medium by any means or in any form; and the exclusive right to authorise or prohibit the re-utilization of all or a substantial part of the contents of the database by the distribution of copies, by renting, by on-line or other forms of transmission;
  8. where the results are or include a patentable subject-matter: the right to register them as a patent and to further exploit such patent to the fullest extent;
  9. where the results are or include logos or subject-matter which could be registered as a trademark: the right to register such logo or subject-matter as a trademark and to further exploit and use it;
  10. where the results are or include know-how: the right to use such know-how as is necessary to make use of the results to the full extent provided for by this FWC, and the right to make it available to contractors or subcontractors acting on behalf of the contracting authority, subject to their signing of adequate confidentiality undertakings where necessary;
  11. where the results are documents:
            1. the right to authorise the reuse of the documents in conformity with the Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU), to the extent it is applicable and the documents fall within its scope and are not excluded by any of its provisions; for the sake of this provision, ‘reuse’ and ‘document’ have the meaning given to it by this Decision;
            1. the right to store and archive the results in line with the document management rules applicable to the contracting authority, including digitisation or converting the format for preservation or new use purposes;
  1. where the results are or incorporate software, including source code, object code and, where relevant, documentation, preparatory materials and manuals, in addition to the other rights mentioned in this Article:
            1. end-user rights, for all uses by the Union or by subcontractors acting on behalf of the Union which result from this FWC and from the intention of the parties;
            1. the rights to decompile or disassemble the software;
  1. to the extent that the contractor may invoke moral rights, the right for the contracting authority, except where otherwise provided in this FWC, to publish the results with or without mentioning the creator(s)’ name(s), and the right to decide when and whether the results may be disclosed and published.

The contractor warrants that the exclusive rights and the modes of exploitation may be exercised by the Union on all parts of the results, be they created by the contractor or consisting of pre-existing materials.

Where pre-existing materials are inserted in the results, the contracting authority may accept reasonable restrictions impacting on the above list, provided that the said materials are easily identifiable and separable from the rest, that they do not correspond to substantial elements of the results, and that, should the need arise, satisfactory replacement solutions exist, at no additional costs to the contracting authority. In such case, the contractor will have to clearly inform the contracting authority before making such choice and the contracting authority has the right to refuse it.

Identification of pre-existing rights

When delivering the results, the contractor must warrant that, for any use that the contracting authority may envisage within the limits set in this FWC, the results and the pre-existing material incorporated in the results are free of claims from creators or from any third parties and all the necessary pre-existing rights have been obtained or licensed.

To that effect, the contractor must establish a list of all pre-existing rights to the results of this FWC or parts thereof, including identification of the rights’ owners. If there are no pre-existing rights to the results, the contractor must provide a declaration to that effect. The contractor must provide this list or declaration to the contracting authority together with the invoice for payment of the balance at the latest.

  Evidence of granting of pre-existing rights

Upon request by the contracting authority, the contractor must provide evidence that it has the ownership or the right to use all the listed pre-existing rights, except for the rights owned or licensed by the Union. The contracting authority may request this evidence even after the end of this FWC.

This evidence may refer, for example, to rights to: parts of other documents, images, graphs, fonts, tables, data, software, technical inventions, know-how, IT development tools, routines, subroutines or other programs (‘background technology’), concepts, designs, installations or pieces of art, data, source or background materials or any other parts of external origin.

This evidence must include, as appropriate:

  1. the name and version number of a software product;
  2. the full identification of the work and its author, developer, creator, translator, data entry person, graphic designer, publisher, editor, photographer, producer;
  3. a copy of the licence to use the product or of the agreement granting the relevant rights to the contractor or a reference to this licence;
  4. a copy of the agreement or extract from the employment contract granting the relevant rights to the contractor where parts of the results were created by its personnel;
  5. the text of the disclaimer notice if any.

Provision of evidence does not release the contractor from its responsibilities if it is found that it does not hold the necessary rights, regardless of when and by whom this fact is revealed.

The contractor also warrants that it possesses the relevant rights or powers to execute the transfer and that it has paid or has verified payment of all due fees including fees due to collecting societies, related to the final results.

Quotation of works in the result

In the result, the contractor must clearly point out all quotations of existing works. The complete reference should include as appropriate, the following: name of the author, title of the work, date and place of publication, date of creation, address of publication on the internet, number, volume and other information that allows the origin to be easily identified.

Moral rights of creators

By delivering the results, the contractor warrants that the creators will not object to the following on the basis of their moral rights under copyright:

  1. that their names be mentioned or not mentioned when the results are presented to the public;
  2. that the results be divulged or not after they have been delivered in their final version to the contracting authority;
  3. that the results be adapted, provided that this is done in a manner which is not prejudicial to the creator’s honour or reputation.

If moral rights on parts of the results protected by copyright may exist, the contractor must obtain the consent of creators regarding the granting or waiver of the relevant moral rights in accordance with the applicable legal provisions and be ready to provide documentary evidence upon request.

Image rights and sound recordings

If natural persons appear in a result or their voice or any other private element is recorded in a recognisable manner, the contractor must obtain a statement by these persons (or, in the case of minors, by the persons exercising parental authority) giving their permission for the described use of their image, voice or private element and, on request, submit a copy of the permission to the contracting authority. The contractor must take the necessary measures to obtain such consent in accordance with the applicable legal provisions.

Copyright notice for pre-existing rights

When the contractor retains pre-existing rights on parts of the results, reference must be inserted to that effect when the result is used as set out in Article I.10.1, with the following disclaimer: ‘© — year — European Union. All rights reserved. Certain parts are licensed under conditions to the EU’, or with any other equivalent disclaimer as the contracting authority may consider best appropriate, or as the parties may agree on a case-by-case basis. This does not apply where inserting such reference would be impossible, notably for practical reasons.

Visibility of Union funding and disclaimer

When making use of the results, the contractor must declare that they have been produced under a contract with the Union and that the opinions expressed are those of the contractor only and do not represent the contracting authority’s official position. The contracting authority may waive this obligation in writing or provide the text of the disclaimer.

Force majeure

II.14.1   If a party is affected by force majeure, it must immediately notify the other party, stating the nature of the circumstances, their likely duration and foreseeable effects.

II.14.2   A party is not liable for any delay or failure to perform its obligations under the FWC if that delay or failure is a result of force majeure. If the contractor is unable to fulfil its contractual obligations owing to force majeure, it has the right to remuneration only for the services actually provided.

II.14.3   The parties must take all necessary measures to limit any damage due to force majeure.

Liquidated damages

 Delay in delivery

If the contractor fails to perform its contractual obligations within the applicable time limits set out in this FWC, the contracting authority may claim liquidated damages for each day of delay using the following formula:

0.3 x (V/d)

where:

V is the price of the relevant purchase or deliverable or result;

d is the duration specified in the relevant specific contract for delivery of the relevant purchase or deliverable or result or, failing that, the period between the date specified in Article I.4.2 and the date of delivery or performance specified in the relevant specific contract, expressed in days.

Liquidated damages may be imposed together with a reduction in price under the conditions laid down in Article II.16.

Procedure

The contracting authority must formally notify the contractor of its intention to apply liquidated damages and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to apply liquidated damages; or

(b) of its final decision to apply liquidated damages and the corresponding amount.

Nature of liquidated damages

The parties expressly acknowledge and agree that any amount payable under this Article is not a penalty and represents a reasonable estimate of fair compensation for the damage incurred due to failure to provide the services within the applicable time limits set out in this FWC.

Claims and liability

Any claim for liquidated damages does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

Reduction in price

Quality standards

If the contractor fails to provide the service in accordance with the FWC or a specific contract (‘unperformed obligations’) or if it fails to provide the service in accordance with the expected quality levels specified in the tender specifications (‘low quality delivery’), the contracting authority may reduce or recover payments proportionally to the seriousness of the unperformed obligations or low quality delivery. This includes in particular cases where the contracting authority cannot approve a result, report or deliverable as defined in Article I.6 after the contractor has submitted the required additional information, correction or new version.

A reduction in price may be imposed together with liquidated damages under the conditions of Article II.15.

Procedure

The contracting authority must formally notify the contractor of its intention to reduce payment and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to reduce payment; or

(b) of its final decision to reduce payment and the corresponding amount,.

Claims and liability

Any reduction in price does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

Suspension of the implementation of the FWC

Suspension by the contractor

If the contractor is affected by force majeure, it may suspend the provision of the services under a specific contract.

The contractor must immediately notify the contracting authority of the suspension. The notification must include a description of the force majeure and state when the contractor expects to resume the provision of services.

The contractor must notify the contracting authority as soon as it is able to resume performance of the specific contract, unless the contracting authority has already terminated the FWC or the specific contract.

Suspension by the contracting authority

The contracting authority may suspend the implementation of the FWC or performance of a specific contract or any part of it:

(a)   if the procedure for awarding the FWC or a specific contract or the implementation of the FWC proves to have been subject to substantial errors, irregularities or fraud;

(b)   in order to verify whether the presumed substantial errors, irregularities or fraud actually occurred.

The contracting authority must formally notify the contractor of the suspension. Suspension takes effect on the date of formal notification, or at a later date if the formal notification so provides.

The contracting authority must notify the contractor as soon as possible whether:

  1. it is lifting the suspension; or
  2. it intends to terminate the FWC or a specific contract under Article II.18.1(f) or (j).

The contractor is not entitled to compensation for suspension of any part of the FWC or a specific contract.

Termination of the FWC

Grounds for termination by the contracting authority

The contracting authority may terminate the FWC or a specific contract in the following circumstances:

  1. if provision of the services under a pending specific contract has not actually started within 15 days of the scheduled date and the contracting authority considers the new date proposed, if any, unacceptable, taking into account Article II.11.2;
  2. if the contractor is unable, through its own fault, to obtain any permit or licence required for implementation of the FWC;
  3. if the contractor does not implement the FWC or perform the specific contract in accordance with the tender specifications or request for service or is in breach of another substantial contractual obligation or repeatedly refuses to sign specific contracts. Termination of three or more specific contracts in these circumstances also constitutes grounds for termination of the FWC;
  4. if the contractor or any person that assumes unlimited liability for the debts of the contractor is in one of the situations provided for in points (a) and (b) of Article 136(1) of the Financial Regulation[6];
  5. if the contractor or any related person is subject to any of the situations provided for in points (c) to (f) of Article 136(1) or to Article 136(2) of the Financial Regulation.
  6. if the procedure for awarding the FWC or the implementation of the FWC prove to have been subject to substantial errors, irregularities or fraud;
  7. if the contractor does not comply with applicable obligations under environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU;
  8. if the contractor is in a situation that could constitute a conflict of interest or a professional conflicting interest as referred to in Article II.7;
  9. if a change to the contractor’s legal, financial, technical, organisational or ownership situation is likely to substantially affect the implementation of the FWC or substantially modify the conditions under which the FWC was initially awarded;
  10. in the event of force majeure, where either resuming implementation is impossible or the necessary ensuing amendments to the FWC or a specific contract would mean that the tender specifications are no longer fulfilled or result in unequal treatment of tenderers or contractors;
  11. if the needs of the contracting authority change and it no longer requires new services under the FWC; in such cases ongoing specific contracts remain unaffected;
  12. if the termination of the FWC with one or more of the contractors means that the multiple FWC with reopening of competition no longer has the minimum required level of competition;
  13. if the contractor is in breach of the data protection obligations resulting from Article II.9.2;
  14. if the contractor does not comply with the applicable data protection obligations resulting from Regulation (EU) 2016/679.

Grounds for termination by the contractor

The contractor may terminate the FWC or a specific contract if:

  1. it has evidence that the contracting authority has committed substantial errors, irregularities or fraud in the procedure for awarding the FWC or the implementation of the FWC;
  2. the contracting authority fails to comply with its obligations, in particular the obligation to provide the information needed for the contractor to implement the FWC or to perform a specific contract as provided for in the tender specifications.

Procedure for termination

A party must formally notify the other party of its intention to terminate the FWC or a specific contract and the grounds for termination.

The other party has 30 days following the date of receipt to submit observations, including the measures it has taken to continue fulfilling its contractual obligations. Failing that, the decision to terminate becomes enforceable the day after the time limit for submitting observations has elapsed.

If the other party submits observations, the party intending to terminate must formally notify it either of the withdrawal of its intention to terminate or of its final decision to terminate.

In the cases referred to in points (a) to (d), (g) to (i), (k) and (l) of Article II.18.1 and in Article II.18.2, the date on which the termination takes effect must be specified in the formal notification.

In the cases referred to in points (e), (f) and (j) of Article II.18.1, the termination takes effect on the day following the date on which the contractor receives notification of termination.

In addition, at the request of the contracting authority and regardless of the grounds for termination, the contractor must provide all necessary assistance, including information, documents and files, to allow the contracting authority to complete, continue or transfer the services to a new contractor or internally, without interruption or adverse effect on the quality or continuity of the services. The parties may agree to draw up a transition plan detailing the contractor’s assistance unless such plan is already detailed in other contractual documents or in the tender specifications. The contractor must provide such assistance at no additional cost, except if it can demonstrate that it requires substantial additional resources or means, in which case it must provide an estimate of the costs involved and the parties will negotiate an arrangement in good faith.

Effects of termination

The contractor is liable for damage incurred by the contracting authority as a result of the termination of the FWC or a specific contract including the cost of appointing another contractor to provide or complete the services, unless the damage was caused by the situation specified in Article II.18.1(j), (k) or (l) or in Article II.18.2. The contracting authority may claim compensation for such damage.

The contractor is not entitled to compensation for any loss resulting from the termination of the FWC or a specific contract, including loss of anticipated profits, unless the loss was caused by the situation specified in Article II.18.2.

The contractor must take all appropriate measures to minimise costs, prevent damage and cancel or reduce its commitments.

Within 60 days of the date of termination, the contractor must submit any report, deliverable or result and any invoice required for services that were provided before the date of termination.

In the case of joint tenders, the contracting authority may terminate the FWC or a specific contract with each member of the group separately  on the basis of points (d), (e) or (g) of Article II.18.1, under the conditions set out in Article II.11.2

Invoices, value added tax and e-invoicing

Invoices and value added tax

Invoices must contain the contractor’s (or leader’s in the case of a joint tender) identification data, the amount, the currency and the date, as well as the FWC reference and reference to the specific contract.

Invoices must indicate the place of taxation of the contractor (or leader in the case of a joint tender) for value added tax (VAT) purposes and must specify separately amounts not including VAT and amounts including VAT.

The contracting authority is exempt from all taxes and duties, including VAT, in accordance with Articles 3 and 4 of the Protocol on the privileges and immunities of the European Union.

Unless otherwise stated in the tender specifications, in the specific contract or in the order form, the contracting authority is exempt from all taxes, duties and other charges, including VAT, in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961 and the particular Headquarters' agreements concluded between the host state and the European Union institution, which grant an exemption equivalent to that stated in the Vienna Convention.

The contractor (or leader in the case of a joint tender) must complete the necessary formalities with the relevant authorities to ensure that the supplies and services required for implementation of the FWC are exempt from taxes and duties, including VAT.

E-invoicing

If provided for in the special conditions, the contractor (or leader in the case of a joint tender) submits invoices in electronic format if the conditions regarding electronic signature specified by Directive 2006/112/EC on VAT are fulfilled, i.e. using a qualified electronic signature or through electronic data interchange.

Reception of invoices by standard format (pdf) or email is not accepted.

Price revision

Price revision is not applicable to this FWC.

                      Ir

Payments and guarantees

Date of payment

Payments are deemed to be effected on the date when they are debited to the contracting authority’s account.

Currency

Payments are made in euros or in the currency provided for in Article I.7.

Costs of transfer

The costs of the transfer are borne as follows:

  1. the contracting authority bears the costs of dispatch charged by its bank;
  2. the contractor bears the costs of receipt charged by its bank;
  3. the party causing repetition of the transfer bears the costs for repeated transfer.

Pre-financing, performance and money retention guarantees

Pre-financing, performance and money retention guarantees are not applicable to this FWC.

Interim payments and payment of the balance

Interim payments and payment of the balance are not applicable to this FWC.

Suspension of the time allowed for payment

The contracting authority may suspend the payment periods specified in Article I.6 at any time by notifying the contractor (or leader in the case of a joint tender) that its invoice cannot be processed. The reasons the contracting authority may cite for not being able to process an invoice are:

  1. because it does not comply with the FWC;
  2. because the contractor has not produced the appropriate documents or deliverables; or
  3. because the contracting authority has observations on the documents or deliverables submitted with the invoice.

The contracting authority must notify the contractor (or leader in the case of joint tender) as soon as possible of any such suspension, giving the reasons for it.

Suspension takes effect on the date the contracting authority sends the notification. The remaining payment period resumes from the date on which the requested information or revised documents are received or the necessary further verification, including on-the-spot checks, is carried out. Where the suspension period exceeds two months, the contractor (or leader in the case of a joint tender) may request the contracting authority to justify the continued suspension.

Where the payment periods have been suspended following rejection of a document referred to in the first paragraph of this Article and the new document produced is also rejected, the contracting authority reserves the right to terminate the specific contract in accordance with Article II.18.1(c).

Interest on late payment

Suspension of the payment period as provided for in Article II.21.7 is not considered as giving rise to late payment.

Interest on late payment covers the period running from the day following the due date for payment up to and including the date of payment as defined in Article II.21.1.

However, when the calculated interest is EUR 200 or less, it must be paid to the contractor (or leader in the case of a joint tender) only if it requests it within two months of receiving late payment.

Reimbursements

Reimbursement of expenses is not applicable to this FWC.

Recovery

II.23.1   If an amount is to be recovered under the terms of the FWC, the contractor must repay the contracting authority the amount in question.

      1. Recovery procedure

Before recovery, the contracting authority must formally notify the contractor of its intention to recover the amount it claims, specifying the amount due and the reasons for recovery and inviting the contractor to make any observations within 30 days of receipt.

If no observations have been submitted or if, despite the observations submitted, the contracting authority decides to pursue the recovery procedure, it must confirm recovery by formally notifying a debit note to the contractor, specifying the date of payment. The contractor must pay in accordance with the provisions specified in the debit note.

If the contractor does not pay by the due date, the contracting authority may, after informing the contractor in writing, recover the amounts due:

  1. by offsetting them against any amounts owed to the contractor by the Union
  2. by calling in a financial guarantee if the contractor has submitted one to the contracting authority;
  3. by taking legal action.

Interest on late payment

If the contractor does not honour the obligation to pay the amount due by the date set by the contracting authority in the debit note, the amount due bears interest at the rate indicated in Article II.21.8. Interest on late payments will cover the period starting on the day after the due date for payment and ending on the date when the contracting authority receives the full amount owed.

Any partial payment is first entered against charges and interest on late payment and then against the principal amount.

Recovery rules in the case of joint tender

If the contract is signed by a group (joint tender), the group is jointly and severally liable under the conditions set out in Article II.6 (liability). The contracting authority first claims the full amount to the leader of the group.

If the leader does not pay by the due date and if the amount cannot be offset in accordance with Article II.23.2 (a), the contracting authority may claim the full amount to any other member of the group by notifying the debit note already sent to the leader under Article II.23.2.

Checks and audits

Checks and audits are not applicable to this FWC.

 

 

III.    MODEL ORDER FORM

 

 

 

 

 

 

 

 

 

 

 

FRAMEWORK CONTRACT

 

MODEL ORDER FORM

 

Delegation of the European Union to the Republic of Botswana

 

 

Order number: 

(Name and address of contractor)

  

 

 

Currency of payment:   BWP

 

 

Tel.:

 

 

Tender (date and reference):

 

 

E-mail: Delegation-Botswana@

eeas.europa.eu

 

 

 

 

 

This order is governed by Framework Contract No EEAS-XXX- DELBWA-SER-FWC-2020   in force from __________ to ___________

  

LISTING OF THE SUPPLIES / SERVICES

UNIT

QUANTITY

PRICE in BWP

 

and code

 

 

UNIT PRICE

TOTAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Pursuant to the provisions of Headquarters Agreement applicable to the European Union Delegation or the Vienna Convention of 18 April 1961 on diplomatic relations][other agreement, the EU is exempt from all taxes and dues, including value added tax, on payments due in respect of this contract.

 

 

 

 

 

[Packaging]

 

 

 

 

[Insurance]

 

 

 

 

[Transport]

 

 

 

 

[Assembly]

 

 

 

 

VAT

 

 

 

 

TOTAL:

 

 

 

 

Place of delivery or performance and/or Incoterm:

Contractor’s signature

 

Final date of delivery or performance:

 

 

 

Payment provisions:

 

 

Name:

 

 

 

 

 

 

Position:

 

 

[Guarantee:]

 

 

 

Date:

 

 

 

 

Date of issue:

 

 

 

 

 

 

 

Signature [name and position]:

 

 

 

   

The invoice will be paid only if the contractor has returned the signed order form.

 

 

 

HEADING

 

 

SERVICE FRAMEWORK CONTRACT

NUMBER — EEAS-XXX- DELBWA-SER-FWC-2020

1. The [European Union (‘the Union’), represented by the European Union Delegation to Botswana and SADC (‘the contracting authority’), represented for the purposes of signing this framework contract by Mr Jan Sadek, Head of Delegation,

of the one part and

2. [Full official name]

[Official legal form ] [7]

[Statutory registration number][8]

[Full official address]

[VAT registration number]

(‘the contractor’), represented for the purpose of the signature of this framework contract by [forename, surname, function of legal representative and name of company in the case of a joint tender],

on the other part,

 

 

 

HAVE AGREED

 

to the special conditions, the general conditions for framework contracts for services and the following annexes:

Annex I –         Tender specifications (reference No [complete] of [insert date])

Annex II –        Contractor’s tender (reference No [complete] of [insert date])

Annex III –      Model for order form

which form an integral part of this framework contract (‘the FWC’).

This FWC sets out:

  1. the procedure by which the contracting authority may order services from the contractor;
  2. the provisions that apply to any specific contract which the contracting authority and the contractor may conclude under this FWC; and
  3. the obligations of the parties during and after the duration of this FWC.

All documents issued by the contractor (end-user agreements, general terms and conditions, etc.) except its tender are held inapplicable, unless explicitly mentioned in the special conditions of this FWC. In all circumstances, in the event of contradiction between this FWC and documents issued by the contractor, this FWC prevails, regardless of any provision to the contrary in the contractor’s documents.

 

 

 

 

Special Conditions

    1. Order of priority of provisions

If there is any conflict between different provisions in this FWC, the following rules must be applied:

  1. The provisions set out in the special conditions take precedence over those in the other parts of the FWC.
  2. The provisions set out in the general conditions take precedence over those in the order form and specific contract (Annex III)
  3. The provisions set out in the order form and specific contract (Annex III) take precedence over those in the other annexes.
  4. The provisions set out in the tender specifications (Annex I) take precedence over those in the tender (Annex II).
  5. The provisions set out in the FWC take precedence over those in the specific contracts.

Any reference to specific contracts applies also to order forms.

    1. Subject matter

The subject matter of the FWC is [short description of subject].

    1. Entry into force and duration of the FWC

I.3.1    The FWC enters into force [on the date on which the last party signs it].

I.3.2    The implementation of the FWC cannot start before its entry into force.

I.3.3    The FWC is concluded for a period of xx months with effect from the date of its entry into force.

I.3.4    The parties must sign any specific contract before the FWC expires.

The FWC continues to apply to such specific contracts after its expiry. The services relating to such specific contracts must be performed no later than six months after the expiry of the FWC.

    1. Type and implementation of the FWC
      1. Type of the contract

The contracting authority awards a single FWC.

      1. Period of provision of the services

The period for the provision of the services starts to run from the date on which the specific contract is signed by the last party.

      1. Implementation of single FWC

The contracting authority orders services by sending the contractor a specific contract in paper format

Within five working days, the contractor must either:

- send the specific contract back to the contracting authority signed and dated; or

- send an explanation of why it cannot accept the order.

If the contractor repeatedly refuses to sign the specific contracts or repeatedly fails to send them back on time, the contractor may be considered in breach of its obligations under this FWC as set out in Article II.18.1 (c).

    1. Prices
      1. Maximum amount of the FWC and maximum prices

The maximum amount covering all services under this FWC is BWP  (amount in figures and in words). However, this does not bind the contracting authority to purchase for the maximum amount.

The maximum prices of the services are as listed in Annex II.

      1. Price revision index

Price revision index is not applicable to this FWC.

      1. Reimbursement of expenses

Reimbursement of expenses is not applicable to this FWC.

    1. Payment arrangements
      1. Pre-financing

Pre-financing is not applicable to this FWC.

      1. Interim payment

Interim payment is not applicable to this FWC.

      1. Payment of the balance

Balance payment is not applicable to this FWC.

      1. Performance guarantee

        Performance guarantee is not applicable to this FWC.

      1. Retention money guarantee

      Retention money guarantee is not applicable to this FWC.

    1. Bank account

Payments must be made to the contractor’s bank account denominated in BWP, identified as follows:

Name of bank:

Full address of branch:

Exact denomination of account holder:

Full account number including bank codes:

IBAN code:

    1. Communication details

For the purpose of this FWC, communications must be sent to the following addresses:

Contracting authority:

European Union Delegation to Botswana and SADC

Robinson Road, Plot 758

Postbox 1253, Gaborone

Email: Delegation-Botswana@eeas.europa.eu

 

٭٭٭

Contractor:

[Full name]

[Function]

[Company name]

[Full official address]

E-mail: [complete]

By derogation from this Article, different contact details for the contracting authority or the contractor may be provided in specific contracts.

    1. Processing of personal data
      1. Processing of personal data by the contracting authority

For the purpose of Article II.9.1,

  1. the data controller is the Head of the Delegation of the European Union to The Republic of Botswana and SADC.
  2. the data protection notice is available at:

https://eeas.europa.eu/sites/eeas/files/procurement_-_privacy_statement.pdf.

      1. Processing of personal data by the contractor

This clause is not applicable to this FWC.

    1. Exploitation of the results of the FWC

This clause is not applicable to this FWC.

      1. Detailed list of modes of exploitation of the results

In accordance with Article II.13.1 whereby the Union acquires ownership of the results as defined in this FWC, including the tender specifications, these results may be used for any of the following modes of exploitation:

[a)        use for its own purposes

      1. Licence or transfer of pre-existing rights

All pre-existing rights incorporated in the results, if any, are licensed to the Union as set out in Article II.13.2.

      1. Provision of list of pre-existing rights and documentary evidence

The contractor must provide the contracting authority with a list of pre-existing rights as set Termination by either party

    1. Applicable law and settlement of disputes

I.12.1  The FWC is governed by Union law, complemented, where necessary, by the law of The Republic of Botswana.

I.12.2  The courts of The Republic of Botswana have exclusive jurisdiction over any dispute regarding the interpretation, application or validity of the FWC.

I.13.1  This FWC is interinstitutional. The lead contracting authority acts on its own behalf and on behalf of the bodies listed in the title of the FWC as the contracting authorities, which provided the lead contracting authority with a power of attorney before FWC signature. The lead contracting authority signs the FWC and any amendments on behalf of itself and of all other contracting authorities.

I.13.2  Each contracting authority is responsible for the particular specific contracts it awards.

I.13.3  If the contractor has a complaint about the conclusion, performance or termination of a specific contract, the contractor remains bound by its obligations under the FWC and other specific contracts.

 

SIGNATURES

For the contractor,

[Company name/forename/surname/position]

 

Signature: _______________________

Done at [place], [date]

For the contracting authority,

[forename/surname/position]

 

Signature:_____________________

Done at [place], [date]

In duplicate in English.

 

  1. GENERAL CONDITIONS FOR THE FRAMEWORK CONTRACT FOR SERVICES
    1. Definitions

For the purpose of this FWC, the following definitions (indicated in italics in the text) apply:

‘Back office’: the internal system(s) used by the parties to process electronic invoices;

‘Confidential information or document’: any information or document received by either party from the other or accessed by either party in the context of the implementation of the FWC, that any of the parties has identified in writing as confidential. It may not include information that is publicly available;

‘Conflict of interest’: a situation where the impartial and objective implementation of the FWC by the contractor is compromised for reasons involving family, emotional life, political or national affinity, economic interest, or any other shared interest with the contracting authority or any third party related to the subject matter of the FWC;

‘Creator’: means any natural person who contributes to the production of the result;

‘EDI message’ (electronic data interchange): a message created and exchanged through the electronic transfer, from computer to computer, of commercial and administrative data using an agreed standard;

‘e-PRIOR’: the service-oriented communication platform that provides a series of web services and allows the exchange of standardised electronic messages and documents between the parties. This is done either through web services, with a machine-to-machine connection between the parties’ back office systems (EDI messages), or through a web application (the supplier portal). The Platform may be used to exchange electronic documents (e-documents) such as electronic requests for services, electronic specific contracts, electronic acceptance of services and electronic invoices between the parties. Technical specifications (i.e. the interface control document), details on access and user manuals are available at the following website: http://ec.europa.eu/dgs/informatics/supplier_portal/documentation/documentation_en.htm

‘Force majeure’: any unforeseeable, exceptional situation or event beyond the control of the parties that prevents either of them from fulfilling any of their obligations under the FWC. The situation or event must not be attributable to error or negligence on the part of the parties or on the part of the subcontractors and must prove to be inevitable despite their exercising due diligence. Defaults of service, defects in equipment or material or delays in making them available, labour disputes, strikes and financial difficulties may not be invoked as force majeure, unless they stem directly from a relevant case of force majeure;

‘Formal notification’ (or ‘formally notify’): form of communication between the parties made in writing by mail or email, which provides the sender with compelling evidence that the message was delivered to the specified recipient;

‘Fraud’: any intentional act or omission affecting the Union’s financial interests relating to the use or presentation of false, incorrect or incomplete statements or documents or to non-disclosure of information in violation of a specific obligation;

‘Implementation of the FWC’: the purchase of services envisaged in the FWC through the signature and performance of specific contracts;

‘Interface control document’: the guideline document which lays down the technical specifications, message standards, security standards, checks of syntax and semantics, etc. to facilitate machine-to-machine connection. This document is updated on a regular basis;

‘Irregularity’: any infringement of a provision of Union law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the Union’s budget.

‘Notification’ (or ‘notify’): form of communication between the parties made in writing including by electronic means;

‘Order form’: a simplified form of specific contract by which the contracting authority orders services under this FWC;

‘Performance of a specific contract’: the execution of tasks and delivery of the purchased services by the contractor to the contracting authority;

‘Personnel’: persons employed directly or indirectly or contracted by the contractor to implement the FWC;

‘Pre-existing material’: any material, document, technology or know-how which exists prior to the contractor using it for the production of a result in the implementation of the FWC;

‘Pre-existing right’: any industrial and intellectual property right on pre-existing material; it may consist in a right of ownership, a licence right and/or right of use belonging to the contractor, the creator, the contracting authority as well as to any other third parties;

‘Professional conflicting interest’: a situation in which the contractor’s previous or ongoing professional activities affect its capacity to implement the FWC or to perform a specific contract to an appropriate quality standard.

‘Related person’: any person who has the power to represent the contractor or to take decisions on its behalf;

‘Request for services’: a document from the contracting authority requesting that the contractors in a multiple FWC provide a specific tender for services whose terms are not entirely defined under the FWC;

‘Result’: any intended outcome of the implementation of the FWC, whatever its form or nature, which is delivered and finally or partially approved by the contracting authority. A result may be further defined in this FWC as a deliverable. A result may, in addition to materials produced by the contractor or at its request, also include pre-existing materials;

‘Specific contract’: a contract implementing the FWC and specifying details of a service to be provided;

‘Substantial error’: any infringement of a contract provision resulting from an act or omission, which causes or might cause a loss to the Union’s budget.

‘Supplier portal’: the e-PRIOR portal, which allows the contractor to exchange electronic business documents, such as invoices, through a graphical user interface; its main features can be found in the supplier portal overview document available on: http://ec.europa.eu/dgs/informatics/supplier_portal/doc/um_supplier_portal_overview.pdf

    1. Roles and responsibilities in the event of a joint tender

In the event of a joint tender submitted by a group of economic operators and where the group does not have legal personality or legal capacity, one member of the group is appointed as leader of the group.

    1. Severability

Each provision of this FWC is severable and distinct from the others. If a provision is or becomes illegal, invalid or unenforceable to any extent, it must be severed from the remainder of the FWC. This does not affect the legality, validity or enforceability of any other provisions of the FWC, which continue in full force and effect. The illegal, invalid or unenforceable provision must be replaced by a legal, valid and enforceable substitute provision which corresponds as closely as possible with the actual intent of the parties under the illegal, invalid or unenforceable provision. The replacement of such a provision must be made in accordance with Article II.11. The FWC must be interpreted as if it had contained the substitute provision as from its entry into force.

    1. Provision of services

II.4.1               Signature of the FWC does not guarantee any actual purchase. The contracting authority is bound only by specific contracts implementing the FWC.

II.4.2   The contractor must provide services of high quality standards, in accordance with the state of the art in the industry and the provisions of this FWC, in particular the tender specifications and the terms of its tender.

II.4.3   The contractor must comply with the minimum requirements provided for in the tender specifications. This includes compliance with applicable obligations under environmental, social and labour law established by Union law, national law and collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU[9], compliance with data protection obligations resulting from Regulation (EU) 2016/679[10] and Regulation (EU) 2018/1725[11].

II.4.4   The contractor must obtain any permit or licence required in the State where the services are to be provided.

II.4.5   All periods specified in the FWC are calculated in calendar days, unless otherwise specified.

II.4.6   The contractor must not present itself as a representative of the contracting authority and must inform third parties that it is not part of the European public service.

II.4.7   The contractor is responsible for the personnel who carry out the services and exercises its authority over its personnel without interference by the contracting authority. The contractor must inform its personnel that:

  1. they may not accept any direct instructions from the contracting authority; and
  2. their participation in providing the services does not result in any employment or contractual relationship with the contracting authority.

II.4.8   The contractor must ensure that the personnel implementing the FWC and any future replacement personnel possess the professional qualifications and experience required to provide the services, as the case may be on the basis of the selection criteria set out in the tender specifications.

II.4.9   At the contracting authority’s reasoned request, the contractor must replace any member of personnel who:

  1. does not have the expertise required to provide the services; or
  2. has caused disruption at the premises of the contracting authority.

The contractor bears the cost of replacing its personnel and is responsible for any delay in providing the services resulting from the replacement of personnel.

II.4.10 The contractor must record and report to the contracting authority any problem that affects its ability to provide the services. The report must describe the problem, state when it started and what action the contractor is taking to resolve it.

    1. Communication between the parties
      1. Form and means of communication

Any communication of information, notices or documents under the FWC must:

  1. be made in writing in paper or electronic format in the language of the contract;
  2. bear the FWC number and, if applicable, the specific contract number;
  3. be made using the relevant communication details set out in Article I.8; and
  4. be sent by mail, email or, for the documents specified in the special conditions, via e-PRIOR.

If a party requests written confirmation of an e-mail within a reasonable time, the other party must provide an original signed paper version of the communication as soon as possible.

The parties agree that any communication made by email has full legal effect and is admissible as evidence in judicial proceedings.

      1. Date of communications by mail and email

Any communication is deemed to have been made when the receiving party receives it, unless this FWC contract refers to the date when the communication was sent.

E-mail is deemed to have been received by the receiving party on the day of dispatch of that e-mail, provided that it is sent to the e-mail address indicated in Article I.8. The sending party must be able to prove the date of dispatch. In the event that the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the communication by email or mail. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline.

Mail sent to the contracting authority is deemed to have been received by the contracting authority on the date on which the department responsible referred to in Article I.8 registers it.

Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message was delivered to the specified recipient.

      1. Submission of e-documents via e-PRIOR
  1. If provided for in the special conditions, the exchange of electronic documents (e-documents) such as requests for services, specific contracts and invoices between the parties is automated through the use of the e-PRIOR platform. This platform provides two possibilities for such exchanges: either through web services (machine-to-machine connection) or through a web application (the supplier portal).
  2. The contracting authority takes the necessary measures to implement and maintain electronic systems that enable the supplier portal to be used effectively.
  3. In the case of machine-to-machine connection, a direct connection is established between the parties’ back offices. In this case, the parties take the measures necessary on their side to implement and maintain electronic systems that enable the machine-to-machine connection to be used effectively. The electronic systems are specified in the interface control document. The contractor (or leader in the case of a joint tender) must take the necessary technical measures to set up a machine-to-machine connection and at its own cost.
  4. If communication via the supplier portal or via the web services (machine-to-machine connection) is hindered by factors beyond the control of one party, it must notify the other immediately and the parties must take the necessary measures to restore this communication.
  5. If it is impossible to restore the communication within two working days, one party must notify the other that alternative means of communication specified in Article II.5.1 will be used until the supplier portal or the machine-to-machine connection is restored.
  6. When a change in the interface control document requires adaptations, the contractor (or leader in the case of a joint tender) has up to six months from receipt of the notification to implement this change. This period can be shortened by mutual agreement of the parties. This period does not apply to urgent measures required by the security policy of the contracting authority to ensure integrity, confidentiality and non-repudiation of information and the availability of e-PRIOR, which must be applied immediately.
      1. Validity and date of e-documents
  1. The parties agree that any e-document, including related attachments exchanged via e-PRIOR:
  1. is considered as equivalent to a paper document;
  2. is deemed to be the original of the document;
  3. is legally binding on the parties once an e-PRIOR authorised person has performed the ‘sign’ action in e-PRIOR and has full legal effect; and
  4. constitutes evidence of the information contained in it and is admissible as evidence in judicial proceedings.
  1. The parties expressly waive any rights to contest the validity of such a document solely on the grounds that communications between the parties occurred through e-PRIOR or that the document has been signed through e-PRIOR. If a direct connection is established between the parties’ back offices to allow electronic transfer of documents, the parties agree that an e-document, sent as mentioned in the interface control document, qualifies as an EDI message.
  2. If the e-document is dispatched through the supplier portal, it is deemed to have been legally issued or sent when the contractor (or leader in the case of a joint tender) is able to successfully submit the e-document without any error messages. The generated PDF and XML document for the e-document are considered as a proof of receipt by the contracting authority.
  3. In the event that an e-document is dispatched using a direct connection established between the parties’ back offices, the e-document is deemed to have been legally issued or sent when its status is ‘received’ as defined in the interface control document.
  4. When using the supplier portal, the contractor (or leader in the case of a joint tender) can download the PDF or XML message for each e-document for one year after submission. After this period, copies of the e-documents are no longer available for automatic download from the supplier portal.
      1.  Authorised persons in e-PRIOR

The contractor submits a request for each person who needs to be assigned the role of ‘user’ in e-PRIOR. These persons are identified by means of the European Communication Authentication Service (ECAS) and authorised to access and perform actions in e-PRIOR within the permissions of the user roles that the contracting authority has assigned to them.

User roles enabling these e-PRIOR authorised persons to sign legally binding documents such as specific tenders or specific contracts are granted only upon submission of supporting documents proving that the authorised person is empowered to act as a legal representative of the contractor.

    1. Liability

II.6.1   The contracting authority is not liable for any damage or loss caused by the contractor, including any damage or loss to third parties during or as a consequence of implementation of the FWC.

II.6.2   If required by the relevant applicable legislation, the contractor must take out an insurance policy against risks and damage or loss relating to the implementation of the FWC. It must also take out supplementary insurance as reasonably required by standard practice in the industry. Upon request, the contractor must provide evidence of insurance coverage to the contracting authority.

II.6.3   The contractor is liable for any loss or damage caused to the contracting authority during or as a consequence of implementation of the FWC, including in the event of subcontracting, but only up to an amount not exceeding three times the total amount of the relevant specific contract. However, if the damage or loss is caused by the gross negligence or wilful misconduct of the contractor or of its personnel or subcontractors, the contractor is liable for the whole amount of the damage or loss.

II.6.4   If a third party brings any action against the contracting authority in connection with the implementation of the FWC, including any action for alleged breach of intellectual property rights, the contractor must assist the contracting authority in the legal proceedings, including by intervening in support of the contracting authority upon request.
If the contracting authority’s liability towards the third party is established and that such liability is caused by the contractor during or as a consequence of the implementation of the FWC, Article II.6.3 applies.

II.6.5   If the contractor is composed of two or more economic operators (i.e. who submitted a joint tender), they are all jointly and severally liable to the contracting authority for the implementation of the FWC.

II.6.6   The contracting authority is not liable for any loss or damage caused to the contractor during or as a consequence of implementation of the FWC, unless the loss or damage was caused by wilful misconduct or gross negligence of the contracting authority.

    1. Conflict of interest and professional conflicting interests

II.7.1   The contractor must take all the necessary measures to prevent any situation of conflict of interest or professional conflicting interest.

II.7.2   The contractor must notify the contracting authority in writing as soon as possible of any situation that could constitute a conflict of interest or a professional conflicting interest during the implementation of the FWC. The contractor must immediately take action to rectify the situation.

The contracting authority may do any of the following:

  1. verify that the contractor’s action is appropriate;
  2. require the contractor to take further action within a specified deadline;
  3. decide not to award a specific contract to the contractor.

II.7.3   The contractor must pass on all the relevant obligations in writing to:

  1. its personnel;
  2.  any natural person with the power to represent it or take decisions on its behalf;
  3. third parties involved in the implementation of the FWC, including subcontractors.

The contractor must also ensure that the persons referred to above are not placed in a situation which could give rise to conflicts of interest.

    1. Confidentiality

II.8.1.  The contracting authority and the contractor must treat with confidentiality any information or documents, in any format, disclosed in writing or orally, relating to the implementation of the FWC and identified in writing as confidential.

II.8.2.  Each party must:

(a)   not use confidential information or documents for any purpose other than to perform its obligations under the FWC or a specific contract without the prior written agreement of the other party;

(b)   ensure the protection of such confidential information or documents with the same level of protection as its own confidential information or documents and in any case with due diligence;

(c)   not disclose, directly or indirectly, confidential information or documents to third parties without the prior written agreement of the other party.

II.8.3   The confidentiality obligations set out in this Article are binding on the contracting authority and the contractor during the implementation of the FWC and for as long as the information or documents remain confidential unless:

(a)   the disclosing party agrees to release the receiving party from the confidentiality obligation earlier;

(b)   the confidential information or documents become public through other means than a breach of the confidentiality obligation;

(c)   the applicable law requires the disclosure of the confidential information or documents.

II.8.4   The contractor must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the implementation of the FWC a commitment that they will comply with this Article. At the request of the contracting authority, the contractor must provide a document providing evidence of this commitment.

    1. Processing of personal data

II.9.1   Processing of personal data by the contracting authority

Any personal data included in or relating to the FWC, including its implementation, shall be processed in accordance with Regulation (EU) 2018/1725. Such data shall be processed solely for the purposes of the implementation, management and monitoring of the FWC by the data controller.

 

The contractor or any other person whose personal data is processed by the data controller in relation to this FWC has specific rights as a data subject under Chapter III (Articles 14-25) of Regulation (EU) 2018/1725, in particular the right to access, rectify or erase their personal data and the right to restrict or, where applicable, the right to object to processing or the right to data portability.

 

Should the contractor or any other person whose personal data is processed in relation to this FWC have any queries concerning the processing of its personal data, it shall address itself to the data controller. They may also address themselves to the Data Protection Officer of the data controller. They have the right to lodge a complaint at any time to the European Data Protection Supervisor.

 

Details concerning the processing of personal data are available in the data protection notice referred to in Article I.9.

II.9.2   Processing of personal data by the contractor

The processing of personal data by the contractor shall meet the requirements of Regulation (EU) 2018/1725 and be processed solely for the purposes set out by the controller.

The contractor shall assist the controller for the fulfilment of the controller’s obligation to respond to requests for exercising rights of person whose personal data is processed in relation to this FWC as laid down in Chapter III (Articles 14-25) of Regulation (EU) 2018/1725. The contractor shall inform without delay the controller about such requests.

The contractor may act only on documented written instructions and under the supervision of the controller, in particular with regard to the purposes of the processing, the categories of data that may be processed, the recipients of the data and the means by which the data subject may exercise its rights.

The contractor shall grant personnel access to the data to the extent strictly necessary for the implementation, management and monitoring of the FWC. The contractor must ensure that personnel authorised to process personal data has committed itself to confidentiality or is under appropriate statutory obligation of confidentiality in accordance with the provisions of Article II.8.

 

The contractor shall adopt appropriate technical and organisational security measures, giving due regard to the risks inherent in the processing and to the nature, scope, context and purposes of processing, in order to ensure, in particular, as appropriate:

 

  1. the pseudonymisation and encryption of personal data;
  2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
  4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;
  5. measures to protect personal data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to personal data transmitted, stored or otherwise processed.

The contractor shall notify relevant personal data breaches to the controller without undue delay and at the latest within 48 hours after the contractor becomes aware of the breach. In such cases, the contractor shall provide the controller with at least the following information:

 

  1. nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
  2. likely consequences of the breach;
  3. measures taken or proposed to be taken to address the breach, including, where appropriate, measures to mitigate its possible adverse effects.

The contractor shall immediately inform the data controller if, in its opinion, an instruction infringes Regulation (EU) 2018/1725, Regulation (EU) 2016/679, or other Union or Member State data protection provisions as referred to in the tender specifications.

The contractor shall assist the controller for the fulfilment of its obligations pursuant to Article 33 to 41 under Regulation (EU) 2018/1725 to:

  1. ensure compliance with its data protection obligations regarding the security of the processing, and  the confidentiality of electronic communications and directories of users;
  2. notify a personal data breach to the European Data Protection Supervisor;
  3. communicate a personal data breach without undue delay to the data subject, where applicable;
  4. carry out data protection impact assessments and prior consultations as necessary.

The contractor shall maintain a record of all data processing operations carried on behalf of the controller, transfers of personal data, security breaches, responses to requests for exercising rights of people whose personal data is processed and requests for access to personal data by third parties.

The contracting authority is subject to Protocol 7 of the Treaty on the Functioning of the European Union on the privileges and immunities of the European Union, particularly as regards the inviolability of archives (including the physical location of data and services as set out in Article I.9.2) and data security, which includes personal data held on behalf of the contracting authority in the premises of the contractor or subcontractor.

The contractor shall notify the contracting authority without delay of any legally binding request for disclosure of the personal data processed on behalf of the contracting authority made by any national public authority, including an authority from a third country. The contractor may not give such access without the prior written authorisation of the contracting authority.

The duration of processing of personal data by the contractor will not exceed the period referred to in Article II.24.2. Upon expiry of this period, the contractor shall, at the choice of the controller, return, without any undue delay in a commonly agreed format, all personal data processed on behalf of the controller and the copies thereof or shall effectively delete all personal data unless Union or national law requires a longer storage of personal data.

For the purpose of Article II.10, if part or all of the processing of personal data is subcontracted to a third party, the contractor shall pass on the obligations referred to in Articles I.9.2 and II.9.2 in writing to those parties, including subcontractors. At the request of the contracting authority, the contractor shall provide a document providing evidence of this commitment.

    1. Subcontracting

II.10.1   The contractor must not subcontract and have the FWC implemented by third parties beyond the third parties already mentioned in its tender without prior written authorisation from the contracting authority.

II.10.2   Even if the contracting authority authorises subcontracting, the contractor remains bound by its contractual obligations and is solely responsible for the implementation of the FWC.

II.10.3   The contractor must ensure that the subcontract does not affect the rights of the contracting authority under this FWC, particularly those under Articles II.8, II.13 and II.24.

II.10.4   The contracting authority may request the contractor to replace a subcontractor found to be in a situation provided for in points (d) and (e) of Article II.18.1.

    1. Amendments

II.11.1   Any amendment to the FWC or a specific contract must be made in writing before all contractual obligations have been fulfilled. A specific contract does not constitute an amendment to the FWC.

II.11.2   Any amendment must not make changes to the FWC or a specific contract that might alter the initial conditions of the procurement procedure or result in unequal treatment of tenderers or contractors.

    1. Assignment

II.12.1   The contractor must not assign any of the rights and obligations arising from the FWC, including claims for payments or factoring, without prior written authorisation from the contracting authority. In such cases, the contractor must provide the contracting authority with the identity of the intended assignee.

II.12.2   Any right or obligation assigned by the contractor without authorisation is not enforceable against the contracting authority.

    1. Intellectual property rights
      1. Ownership of the rights in the results

The Union acquires irrevocably worldwide ownership of the results and of all intellectual property rights under the FWC. The intellectual property rights so acquired include any rights, such as copyright and other intellectual or industrial property rights, to any of the results and to all technological solutions and information created or produced by the contractor or by its subcontractor in implementation of the FWC. The contracting authority may exploit and use the acquired rights as stipulated in this FWC. The Union acquires all the rights from the moment the contracting authority approves the results delivered by the contractor. Such delivery and approval are deemed to constitute an effective assignment of rights from the contractor to the Union.

The payment of the price includes any fees payable to the contractor about the acquisition of ownership of rights by the Union including for all forms of exploitation and of use of the results.

      1. Licensing rights on pre-existing materials

Unless provided otherwise in the special conditions, the Union does not acquire ownership of pre-existing rights under this FWC.

The contractor licenses the pre-existing rights on a royalty-free, non-exclusive and irrevocable basis to the Union, which may use the pre-existing materials for all the modes of exploitation set out in this FWC or in specific contracts. All pre-existing rights are licensed to the Union from the moment the results are delivered and approved by the contracting authority.

The licensing of pre-existing rights to the Union under this FWC covers all territories worldwide and is valid for the duration of intellectual property rights protection.

The payment of the price as set out in the specific contracts is deemed to also include any fees payable to the contractor in relation to the licensing of pre-existing rights to the Union, including for all forms of exploitation and of use of the results.

Where implementation of the FWC requires that the contractor uses pre-existing materials belonging to the contracting authority, the contracting authority may request that the contractor signs an adequate licence agreement. Such use by the contractor will not entail any transfer of rights to the contractor and is limited to the needs of this FWC.

      1. Exclusive rights

The Union acquires the following exclusive rights:

  1. reproduction: the right to authorise or prohibit direct or indirect, temporary or permanent reproduction of the results by any means (mechanical, digital or other) and in any form, in whole or in part;
  2. communication to the public: the exclusive right to authorise or prohibit any display, performance or communication to the public, by wire or wireless means, including the making available to the public of the results in such a way that members of the public may access them from a place and at a time individually chosen by them; this right also includes the communication and broadcasting by cable or by satellite;
  3. distribution: the exclusive right to authorise or prohibit any form of distribution of results or copies of the results to the public, by sale or otherwise;
  4. rental: the exclusive right to authorise or prohibit rental or lending of the results or of copies of the results;
  5. adaptation: the exclusive right to authorise or prohibit any modification of the results;
  6. translation: the exclusive right to authorise or prohibit any translation, adaptation, arrangement, creation of derivative works based on the results, and any other alteration of the results, subject to the respect of moral rights of authors, where applicable;
  7. where the results are or include a database: the exclusive right to authorise or prohibit the extraction of all or a substantial part of the contents of the database to another medium by any means or in any form; and the exclusive right to authorise or prohibit the re-utilization of all or a substantial part of the contents of the database by the distribution of copies, by renting, by on-line or other forms of transmission;
  8. where the results are or include a patentable subject-matter: the right to register them as a patent and to further exploit such patent to the fullest extent;
  1. where the results are or include logos or subject-matter which could be registered as a trademark: the right to register such logo or subject-matter as a trademark and to further exploit and use it;
  1. where the results are or include know-how: the right to use such know-how as is necessary to make use of the results to the full extent provided for by this FWC, and the right to make it available to contractors or subcontractors acting on behalf of the contracting authority, subject to their signing of adequate confidentiality undertakings where necessary;
  1. where the results are documents:
            1. the right to authorise the reuse of the documents in conformity with the Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU), to the extent it is applicable and the documents fall within its scope and are not excluded by any of its provisions; for the sake of this provision, ‘reuse’ and ‘document’ have the meaning given to it by this Decision;
            2. the right to store and archive the results in line with the document management rules applicable to the contracting authority, including digitisation or converting the format for preservation or new use purposes;
  1. where the results are or incorporate software, including source code, object code and, where relevant, documentation, preparatory materials and manuals, in addition to the other rights mentioned in this Article:
            1. end-user rights, for all uses by the Union or by subcontractors acting on behalf of the Union which result from this FWC and from the intention of the parties;
            2. the rights to decompile or disassemble the software;
  2. to the extent that the contractor may invoke moral rights, the right for the contracting authority, except where otherwise provided in this FWC, to publish the results with or without mentioning the creator(s)’ name(s), and the right to decide when and whether the results may be disclosed and published.

The contractor warrants that the exclusive rights and the modes of exploitation may be exercised by the Union on all parts of the results, be they created by the contractor or consisting of pre-existing materials.

Where pre-existing materials are inserted in the results, the contracting authority may accept reasonable restrictions impacting on the above list, provided that the said materials are easily identifiable and separable from the rest, that they do not correspond to substantial elements of the results, and that, should the need arise, satisfactory replacement solutions exist, at no additional costs to the contracting authority. In such case, the contractor will have to clearly inform the contracting authority before making such choice and the contracting authority has the right to refuse it.

      1. Identification of pre-existing rights

When delivering the results, the contractor must warrant that, for any use that the contracting authority may envisage within the limits set in this FWC, the results and the pre-existing material incorporated in the results are free of claims from creators or from any third parties and all the necessary pre-existing rights have been obtained or licensed.

To that effect, the contractor must establish a list of all pre-existing rights to the results of this FWC or parts thereof, including identification of the rights’ owners. If there are no pre-existing rights to the results, the contractor must provide a declaration to that effect. The contractor must provide this list or declaration to the contracting authority together with the invoice for payment of the balance at the latest.

      1.             Evidence of granting of pre-existing rights

Upon request by the contracting authority, the contractor must provide evidence that it has the ownership or the right to use all the listed pre-existing rights, except for the rights owned or licensed by the Union. The contracting authority may request this evidence even after the end of this FWC.

This evidence may refer, for example, to rights to: parts of other documents, images, graphs, fonts, tables, data, software, technical inventions, know-how, IT development tools, routines, subroutines or other programs (‘background technology’), concepts, designs, installations or pieces of art, data, source or background materials or any other parts of external origin.

This evidence must include, as appropriate:

  1. the name and version number of a software product;
  2. the full identification of the work and its author, developer, creator, translator, data entry person, graphic designer, publisher, editor, photographer, producer;
  3. a copy of the licence to use the product or of the agreement granting the relevant rights to the contractor or a reference to this licence;
  4. a copy of the agreement or extract from the employment contract granting the relevant rights to the contractor where parts of the results were created by its personnel;
  5. the text of the disclaimer notice if any.

Provision of evidence does not release the contractor from its responsibilities if it is found that it does not hold the necessary rights, regardless of when and by whom this fact is revealed.

The contractor also warrants that it possesses the relevant rights or powers to execute the transfer and that it has paid or has verified payment of all due fees including fees due to collecting societies, related to the final results.

      1. Quotation of works in the result

In the result, the contractor must clearly point out all quotations of existing works. The complete reference should include as appropriate, the following: name of the author, title of the work, date and place of publication, date of creation, address of publication on the internet, number, volume and other information that allows the origin to be easily identified.

      1. Moral rights of creators

By delivering the results, the contractor warrants that the creators will not object to the following on the basis of their moral rights under copyright:

  1. that their names be mentioned or not mentioned when the results are presented to the public;
  2. that the results be divulged or not after they have been delivered in their final version to the contracting authority;
  3. that the results be adapted, provided that this is done in a manner which is not prejudicial to the creator’s honour or reputation.

If moral rights on parts of the results protected by copyright may exist, the contractor must obtain the consent of creators regarding the granting or waiver of the relevant moral rights in accordance with the applicable legal provisions and be ready to provide documentary evidence upon request.

      1. Image rights and sound recordings

If natural persons appear in a result or their voice or any other private element is recorded in a recognisable manner, the contractor must obtain a statement by these persons (or, in the case of minors, by the persons exercising parental authority) giving their permission for the described use of their image, voice or private element and, on request, submit a copy of the permission to the contracting authority. The contractor must take the necessary measures to obtain such consent in accordance with the applicable legal provisions.

      1. Copyright notice for pre-existing rights

When the contractor retains pre-existing rights on parts of the results, reference must be inserted to that effect when the result is used as set out in Article I.10.1, with the following disclaimer: ‘© — year — European Union. All rights reserved. Certain parts are licensed under conditions to the EU’, or with any other equivalent disclaimer as the contracting authority may consider best appropriate, or as the parties may agree on a case-by-case basis. This does not apply where inserting such reference would be impossible, notably for practical reasons.

      1. Visibility of Union funding and disclaimer

When making use of the results, the contractor must declare that they have been produced under a contract with the Union and that the opinions expressed are those of the contractor only and do not represent the contracting authority’s official position. The contracting authority may waive this obligation in writing or provide the text of the disclaimer.

    1. Force majeure

II.14.1   If a party is affected by force majeure, it must immediately notify the other party, stating the nature of the circumstances, their likely duration and foreseeable effects.

II.14.2   A party is not liable for any delay or failure to perform its obligations under the FWC if that delay or failure is a result of force majeure. If the contractor is unable to fulfil its contractual obligations owing to force majeure, it has the right to remuneration only for the services actually provided.

II.14.3   The parties must take all necessary measures to limit any damage due to force majeure.

    • Liquidated damages
      1.  Delay in delivery

If the contractor fails to perform its contractual obligations within the applicable time limits set out in this FWC, the contracting authority may claim liquidated damages for each day of delay using the following formula:

0.3 x (V/d)

where:

V is the price of the relevant purchase or deliverable or result;

d is the duration specified in the relevant specific contract for delivery of the relevant purchase or deliverable or result or, failing that, the period between the date specified in Article I.4.2 and the date of delivery or performance specified in the relevant specific contract, expressed in days.

Liquidated damages may be imposed together with a reduction in price under the conditions laid down in Article II.16.

      1. Procedure

The contracting authority must formally notify the contractor of its intention to apply liquidated damages and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to apply liquidated damages; or

(b) of its final decision to apply liquidated damages and the corresponding amount.

      1. Nature of liquidated damages

The parties expressly acknowledge and agree that any amount payable under this Article is not a penalty and represents a reasonable estimate of fair compensation for the damage incurred due to failure to provide the services within the applicable time limits set out in this FWC.

      1. Claims and liability

Any claim for liquidated damages does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

    1. Reduction in price
      1. Quality standards

If the contractor fails to provide the service in accordance with the FWC or a specific contract (‘unperformed obligations’) or if it fails to provide the service in accordance with the expected quality levels specified in the tender specifications (‘low quality delivery’), the contracting authority may reduce or recover payments proportionally to the seriousness of the unperformed obligations or low quality delivery. This includes in particular cases where the contracting authority cannot approve a result, report or deliverable as defined in Article I.6 after the contractor has submitted the required additional information, correction or new version.

A reduction in price may be imposed together with liquidated damages under the conditions of Article II.15.

      1. Procedure

The contracting authority must formally notify the contractor of its intention to reduce payment and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to reduce payment; or

(b) of its final decision to reduce payment and the corresponding amount,.

      1. Claims and liability

Any reduction in price does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

    1. Suspension of the implementation of the FWC
      1. Suspension by the contractor

If the contractor is affected by force majeure, it may suspend the provision of the services under a specific contract.

The contractor must immediately notify the contracting authority of the suspension. The notification must include a description of the force majeure and state when the contractor expects to resume the provision of services.

The contractor must notify the contracting authority as soon as it is able to resume performance of the specific contract, unless the contracting authority has already terminated the FWC or the specific contract.

      1. Suspension by the contracting authority

The contracting authority may suspend the implementation of the FWC or performance of a specific contract or any part of it:

(a)   if the procedure for awarding the FWC or a specific contract or the implementation of the FWC proves to have been subject to substantial errors, irregularities or fraud;

(b)   in order to verify whether the presumed substantial errors, irregularities or fraud actually occurred.

The contracting authority must formally notify the contractor of the suspension. Suspension takes effect on the date of formal notification, or at a later date if the formal notification so provides.

The contracting authority must notify the contractor as soon as possible whether:

  1. it is lifting the suspension; or
  2. it intends to terminate the FWC or a specific contract under Article II.18.1(f) or (j).

The contractor is not entitled to compensation for suspension of any part of the FWC or a specific contract.

    1. Termination of the FWC
      1. Grounds for termination by the contracting authority

The contracting authority may terminate the FWC or a specific contract in the following circumstances:

  • if provision of the services under a pending specific contract has not actually started within 15 days of the scheduled date and the contracting authority considers the new date proposed, if any, unacceptable, taking into account Article II.11.2;
  • if the contractor is unable, through its own fault, to obtain any permit or licence required for implementation of the FWC;
  • if the contractor does not implement the FWC or perform the specific contract in accordance with the tender specifications or request for service or is in breach of another substantial contractual obligation or repeatedly refuses to sign specific contracts. Termination of three or more specific contracts in these circumstances also constitutes grounds for termination of the FWC;
  • if the contractor or any person that assumes unlimited liability for the debts of the contractor is in one of the situations provided for in points (a) and (b) of Article 136(1) of the Financial Regulation[12];
  • if the contractor or any related person is subject to any of the situations provided for in points (c) to (f) of Article 136(1) or to Article 136(2) of the Financial Regulation.
  • if the procedure for awarding the FWC or the implementation of the FWC prove to have been subject to substantial errors, irregularities or fraud;
  • if the contractor does not comply with applicable obligations under environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU;
  1. if the contractor is in a situation that could constitute a conflict of interest or a professional conflicting interest as referred to in Article II.7;
  1. if a change to the contractor’s legal, financial, technical, organisational or ownership situation is likely to substantially affect the implementation of the FWC or substantially modify the conditions under which the FWC was initially awarded;
  1. in the event of force majeure, where either resuming implementation is impossible or the necessary ensuing amendments to the FWC or a specific contract would mean that the tender specifications are no longer fulfilled or result in unequal treatment of tenderers or contractors;
  1. if the needs of the contracting authority change and it no longer requires new services under the FWC; in such cases ongoing specific contracts remain unaffected;
  2. if the termination of the FWC with one or more of the contractors means that the multiple FWC with reopening of competition no longer has the minimum required level of competition;
  3. if the contractor is in breach of the data protection obligations resulting from Article II.9.2;
  4. if the contractor does not comply with the applicable data protection obligations resulting from Regulation (EU) 2016/679.
      1. Grounds for termination by the contractor

The contractor may terminate the FWC or a specific contract if:

  1. it has evidence that the contracting authority has committed substantial errors, irregularities or fraud in the procedure for awarding the FWC or the implementation of the FWC;
  2. the contracting authority fails to comply with its obligations, in particular the obligation to provide the information needed for the contractor to implement the FWC or to perform a specific contract as provided for in the tender specifications.
      1. Procedure for termination

A party must formally notify the other party of its intention to terminate the FWC or a specific contract and the grounds for termination.

The other party has 30 days following the date of receipt to submit observations, including the measures it has taken to continue fulfilling its contractual obligations. Failing that, the decision to terminate becomes enforceable the day after the time limit for submitting observations has elapsed.

If the other party submits observations, the party intending to terminate must formally notify it either of the withdrawal of its intention to terminate or of its final decision to terminate.

In the cases referred to in points (a) to (d), (g) to (i), (k) and (l) of Article II.18.1 and in Article II.18.2, the date on which the termination takes effect must be specified in the formal notification.

In the cases referred to in points (e), (f) and (j) of Article II.18.1, the termination takes effect on the day following the date on which the contractor receives notification of termination.

In addition, at the request of the contracting authority and regardless of the grounds for termination, the contractor must provide all necessary assistance, including information, documents and files, to allow the contracting authority to complete, continue or transfer the services to a new contractor or internally, without interruption or adverse effect on the quality or continuity of the services. The parties may agree to draw up a transition plan detailing the contractor’s assistance unless such plan is already detailed in other contractual documents or in the tender specifications. The contractor must provide such assistance at no additional cost, except if it can demonstrate that it requires substantial additional resources or means, in which case it must provide an estimate of the costs involved and the parties will negotiate an arrangement in good faith.

      1. Effects of termination

The contractor is liable for damage incurred by the contracting authority as a result of the termination of the FWC or a specific contract including the cost of appointing another contractor to provide or complete the services, unless the damage was caused by the situation specified in Article II.18.1(j), (k) or (l) or in Article II.18.2. The contracting authority may claim compensation for such damage.

The contractor is not entitled to compensation for any loss resulting from the termination of the FWC or a specific contract, including loss of anticipated profits, unless the loss was caused by the situation specified in Article II.18.2.

The contractor must take all appropriate measures to minimise costs, prevent damage and cancel or reduce its commitments.

Within 60 days of the date of termination, the contractor must submit any report, deliverable or result and any invoice required for services that were provided before the date of termination.

In the case of joint tenders, the contracting authority may terminate the FWC or a specific contract with each member of the group separately  on the basis of points (d), (e) or (g) of Article II.18.1, under the conditions set out in Article II.11.2

    1. Invoices, value added tax and e-invoicing
      1. Invoices and value added tax

Invoices must contain the contractor’s (or leader’s in the case of a joint tender) identification data, the amount, the currency and the date, as well as the FWC reference and reference to the specific contract.

Invoices must indicate the place of taxation of the contractor (or leader in the case of a joint tender) for value added tax (VAT) purposes and must specify separately amounts not including VAT and amounts including VAT.

The contracting authority is exempt from all taxes and duties, including VAT, in accordance with Articles 3 and 4 of the Protocol on the privileges and immunities of the European Union.

Unless otherwise stated in the tender specifications, in the specific contract or in the order form, the contracting authority is exempt from all taxes, duties and other charges, including VAT, in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961 and the particular Headquarters' agreements concluded between the host state and the European Union institution, which grant an exemption equivalent to that stated in the Vienna Convention.

The contractor (or leader in the case of a joint tender) must complete the necessary formalities with the relevant authorities to ensure that the supplies and services required for implementation of the FWC are exempt from taxes and duties, including VAT.

      1. E-invoicing

If provided for in the special conditions, the contractor (or leader in the case of a joint tender) submits invoices in electronic format if the conditions regarding electronic signature specified by Directive 2006/112/EC on VAT are fulfilled, i.e. using a qualified electronic signature or through electronic data interchange.

Reception of invoices by standard format (pdf) or email is not accepted.

    1. Price revision

Price revision is not applicable to this FWC.

                      Ir

    1. Payments and guarantees
      1. Date of payment

Payments are deemed to be effected on the date when they are debited to the contracting authority’s account.

      1. Currency

Payments are made in euros or in the currency provided for in Article I.7.

      1. Costs of transfer

The costs of the transfer are borne as follows:

  1. the contracting authority bears the costs of dispatch charged by its bank;
  2. the contractor bears the costs of receipt charged by its bank;
  3. the party causing repetition of the transfer bears the costs for repeated transfer.
      1. Pre-financing, performance and money retention guarantees

Pre-financing, performance and money retention guarantees are not applicable to this FWC.

      1. Interim payments and payment of the balance

Interim payments and payment of the balance are not applicable to this FWC.

      1. Suspension of the time allowed for payment

The contracting authority may suspend the payment periods specified in Article I.6 at any time by notifying the contractor (or leader in the case of a joint tender) that its invoice cannot be processed. The reasons the contracting authority may cite for not being able to process an invoice are:

  1. because it does not comply with the FWC;
  2. because the contractor has not produced the appropriate documents or deliverables; or
  3. because the contracting authority has observations on the documents or deliverables submitted with the invoice.

The contracting authority must notify the contractor (or leader in the case of joint tender) as soon as possible of any such suspension, giving the reasons for it.

Suspension takes effect on the date the contracting authority sends the notification. The remaining payment period resumes from the date on which the requested information or revised documents are received or the necessary further verification, including on-the-spot checks, is carried out. Where the suspension period exceeds two months, the contractor (or leader in the case of a joint tender) may request the contracting authority to justify the continued suspension.

Where the payment periods have been suspended following rejection of a document referred to in the first paragraph of this Article and the new document produced is also rejected, the contracting authority reserves the right to terminate the specific contract in accordance with Article II.18.1(c).

      1. Interest on late payment

Suspension of the payment period as provided for in Article II.21.7 is not considered as giving rise to late payment.

Interest on late payment covers the period running from the day following the due date for payment up to and including the date of payment as defined in Article II.21.1.

However, when the calculated interest is EUR 200 or less, it must be paid to the contractor (or leader in the case of a joint tender) only if it requests it within two months of receiving late payment.

    1. Reimbursements

Reimbursement of expenses is not applicable to this FWC.

    1. Recovery

II.23.1   If an amount is to be recovered under the terms of the FWC, the contractor must repay the contracting authority the amount in question.

      1. Recovery procedure

Before recovery, the contracting authority must formally notify the contractor of its intention to recover the amount it claims, specifying the amount due and the reasons for recovery and inviting the contractor to make any observations within 30 days of receipt.

If no observations have been submitted or if, despite the observations submitted, the contracting authority decides to pursue the recovery procedure, it must confirm recovery by formally notifying a debit note to the contractor, specifying the date of payment. The contractor must pay in accordance with the provisions specified in the debit note.

If the contractor does not pay by the due date, the contracting authority may, after informing the contractor in writing, recover the amounts due:

  1. by offsetting them against any amounts owed to the contractor by the Union
  2. by calling in a financial guarantee if the contractor has submitted one to the contracting authority;
  3. by taking legal action.
      1. Interest on late payment

If the contractor does not honour the obligation to pay the amount due by the date set by the contracting authority in the debit note, the amount due bears interest at the rate indicated in Article II.21.8. Interest on late payments will cover the period starting on the day after the due date for payment and ending on the date when the contracting authority receives the full amount owed.

Any partial payment is first entered against charges and interest on late payment and then against the principal amount.

      1. Recovery rules in the case of joint tender

If the contract is signed by a group (joint tender), the group is jointly and severally liable under the conditions set out in Article II.6 (liability). The contracting authority first claims the full amount to the leader of the group.

If the leader does not pay by the due date and if the amount cannot be offset in accordance with Article II.23.2 (a), the contracting authority may claim the full amount to any other member of the group by notifying the debit note already sent to the leader under Article II.23.2.

    1. Checks and audits

Checks and audits are not applicable to this FWC.

 

 

III.    MODEL ORDER FORM

 

 

 

 

 

FRAMEWORK CONTRACT

 

MODEL ORDER FORM

 

Delegation of the European Union to the Republic of Botswana

 

 

Order number: 

(Name and address of contractor)

  

 

 

Currency of payment:   BWP

 

 

Tel.:

 

 

Tender (date and reference):

 

 

E-mail: Delegation-Botswana@

eeas.europa.eu

 

 

 

 

 

This order is governed by Framework Contract No EEAS-XXX- DELBWA-SER-FWC-2020   in force from __________ to ___________

  

LISTING OF THE SUPPLIES / SERVICES

UNIT

QUANTITY

PRICE in BWP

 

and code

 

 

UNIT PRICE

TOTAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Pursuant to the provisions of Headquarters Agreement applicable to the European Union Delegation or the Vienna Convention of 18 April 1961 on diplomatic relations][other agreement, the EU is exempt from all taxes and dues, including value added tax, on payments due in respect of this contract.

 

 

 

 

 

[Packaging]

 

 

 

 

[Insurance]

 

 

 

 

[Transport]

 

 

 

 

[Assembly]

 

 

 

 

VAT

 

 

 

 

TOTAL:

 

 

 

 

Place of delivery or performance and/or Incoterm:

Contractor’s signature

 

Final date of delivery or performance:

 

 

 

Payment provisions:

 

 

Name:

 

 

 

 

 

 

Position:

 

 

[Guarantee:]

 

 

 

Date:

 

 

 

 

Date of issue:

 

 

 

 

 

 

 

Signature [name and position]:

 

 

 

   

The invoice will be paid only if the contractor has returned the signed order form.

 

 

 

TENDER SPECIFICATIONS

No EEAS-DELBWA-04/01/2020-SER-FWC PAINTING SERVICES

Services Framework Contract

NEGOTIATED PROCEDURE

  1. Introduction

The contracting authority is the European Union (hereinafter referred to as "contracting authority"), represented by the Head the Delegation of the European Union in The Republic of Botswana or its duly authorized representative.

These tender specifications and the tender submitted by the awardee of the contract will be annexed to the contract and therefore be binding on the contracting parties during the implementation of the contract.

In addition, the instructions as stipulated in the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" (available at the following link: https://eeas.europa.eu/headquarters/headquarters-homepage/8989_en are applicable to this tender unless otherwise mentioned in these tender specifications.

  1. subject of the contract
  • The contractor must provide the human and material resources necessary to provide the service in the non‑exhaustive list below:
  • proper preparation of all surfaces to be painted;
  • complete painting of external walls of each house as per schedule;
  • complete painting of boundary wall as per schedule
  • cracks and holes in the wall and surfaces will be spackled and sanded smooth
  •  

The place of performance is mainly staff houses all located within an approximate 10km radius of the Delegation offices.

  1. joint tender

The provisions are detailed in the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" as mentioned under point 1 above.

  1. eligibility of economic operators
    1. Access to public procurement

In addition to the provisions at point 4.1 of the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts", this tender is also exceptionally open on equal terms to all natural and legal persons in The Republic of Botswana.

    1. Non-exclusion and selection of economic operators

Tenderers shall provide a declaration on exclusion and selection criteria attached to these tender specifications dully filled in, signed and dated by the legally authorised representative.

The declaration on exclusion and selection criteria shall be provided by each member of the group in case of joint tenders.

All the tenderers shall provide with their tenders the documents mentioned as supporting documents on selection criteria in the declaration on their honour and in the "Tender form" annexed to these tender specifications.

The tenderers shall meet the selection criteria listed here below.

      1. Legal and regulatory capacity criteria
  1. Authorisation to provide the services at the place of performance of the contract.

Minimum capacity level required:

The tenderer shall be authorised to provide the services being subject to this contract at the place of performance of this contract. The relevant certificate must be valid on the date of the deadline for the submission of requests to participate.

Supporting document(s)/evidence requested:

  1. Evidence on enrolment in a relevant professional or trade register, except for international organisations.
  •  
  1. Evidence of professional and liability risk indemnity insurance valid for the execution of services foreseen in the present contract notice in The Republic of Botswana.

Before the signature of the contract, the validity of the certificate may be verified again.

      1. Economic and financial capacity criteria
  1. Turnover

Minimum capacity level required:

  1. The average annual turnover for the last two financial years for which accounts have been closed.

Supporting document(s)/evidence requested:

Profit and loss accounts (Income statement) for the last two financial years for which accounts have been closed.

 

      1. Technical and professional capacity criteria
  1. Previous contracts

Minimum capacity level(s) required:

1. At least three contracts in the fields related to the painting services indicated in point 2 during the last three calendar years.

Supporting document(s)/evidence requested:

In order to meet the minimum capacity level(s) required mentioned above, the tenderer must present a list of references and/or client's reference letters relevant to the painting service contracts performed during the past three calendar years.

The criterion is applied to:

  1. Evaluation of tenders on the basis of the award criteria

The technically compliant tenders are evaluated in order to award the contract to the tender offering the lowest price. In other words, the contract is awarded to the tender that satisfies the requirements set in the technical specifications and offers the lowest price.

    1. Technical compliance

The technical compliance will be evaluated based on the "Table of compliance with the requirements in the procurement documents" (refer to the "Tender form"). The tenderers shall return the table duly completed, dated and signed.

    1. Financial tender

Only the financial tenders submitted by those tenderers who have submitted technically compliant tenders as indicated above will be considered for the award.

The prices for the tender must be tendered:

  • in BWP;
  • free of all duties, taxes and other charges, including VAT, as the European Union is exempt from such charges under the Vienna Convention;
  • all inclusive. This means that, unless otherwise mentioned in these tender specifications, prices tendered for shall include all the costs to be incurred by the tenderers to fully implement the contract;
  • using the unit price schedule (Annex A).
  1. Content of the tender

The tenderer shall duly complete and sign the "Tender form" annexed to these tender specifications and submit all the documents requested in it.

The contracting authority reserves the right to decide whether to request or not any missing documents not provided by the tenderers.

  1. Annexes

Annex I: Technical specifications

Annex II:            Tender form

  • Section 1:            Presentation of the tenderer
  • Section 2:            Legal entity form and Financial Identification Form
  • Section 3:            Declaration on honour on exclusion and selection criteria
  • Section 4:            Evidence on selection criteria
  • Section 5 :          Technical tender – Table of compliance with the requirements in the procurement documents
  • Section 6 :           Financial tender

 Annexes Annex I Technical specifications

The contracting authority intends to procure the provision of painting services to be rendered to the EU Delegation.  All the requirements in the following technical specifications are considered to be minimum requirements and therefore not subject to the negotiation, if any, unless specified for any particular aspects.

  1. Scope of Work

The following services are required:

  • proper preparation of all surfaces to be painted;
  • complete painting of external walls of each house as per schedule;
  • complete painting of boundary wall as per schedule
  • cracks and holes in the wall and surfaces will be spackled and sanded smooth.
  1. Equipment and materials

Equipment and material will be supplied by the contractor.

  • All equipment and material must comply with the standards laid down in the standards of the The Republic of Botswana.
  • Wall paint shall be of high, durable quality and of a well-known brand.

 

  1. Specific Requirements

 

  1. General Workmanship

 

  • All surfaces to be painted shall be dry and cleaned, free of all dirt, grit, grease, mould, mildew or any other foreign substance.
  • A primer or undercoat will be used before painting if and where required.
  • All work shall be done in a neat and clean manner.
  • Each coat of paint shall be evenly worked out and allowed to dry according to the manufacturer's recommendations before subsequent coats are applied.
  • The finishing coat or coats of paint shall be off white in colour. The contractor shall not change the colour of the paint unless authorised to do so by the Contracting Authority in writing.
  • The finished work shall be free from runs, sags, defective brushing or stippling and clogging of lines and angles of the trim.
  • It shall be understood that the number of coats of material recommended by the manufacturer specifies a minimum. Taking into consideration that even material of high quality, mere applications of the stated number of coats will not assure acceptance unless the workmanship and quality of work is approved by the Contracting Authority.
  • The thinning of good, high quality material for additional coverage and the use of poor materials and the adulteration with inferior substitute materials is not permitted.  A full bodied finish of the paint surface is required under this contract regardless of the number of coats necessary to get the accomplished result.
  • All surfaces shall be left clean at completion of the job.
  • Drop cloths shall be used and kept clean at all times.
  • Windows and floor shall be carefully handled and kept free of paint and spatters.
  1. Conduct of Operations
  • The Contractor shall conduct the requested works in a cooperative manner with the Contracting Authority and shall interfere as little as possible with the normal operations and functioning of the Residence and the tenants of the properties.
  • Most of the living quarters will be vacant at the time the painting is done.  Whether these spaces are occupied or not, the work of the Contractor is to be pursued diligently to the end and each area is to be finished at the earliest possible moment after standing. Work shall be done in areas as directed by the Contracting Authority so that any inconvenience is kept to a minimum.
  1. Protection
  • The Contractor shall protect floors and other finished surfaces from damage during the execution of the work.
  • The Contractor shall be responsible for any damage to other work. Any materials which in the opinion of the Contracting Authority have become damaged to such an extent that they cannot be restored to their original condition shall be replaced at the Contractor's expense.
  • Work not to be finished and/or under this contract shall be protected against paint spatter, stain or soiling.
  1. Touch up

At completion of the works specified, all paintwork shall be touched up and restored where damaged, defaced or defective and the entire work left free from blemishes.

  1. Cleaning

The Contractor shall clean all paint spots, oil and stains from floors, woodwork, glass, hardware, tile, metal work and all similar items and leave the site clean upon completion.

  1. Staff

Staff must have

  • no criminal record;
  • a polite, professional and punctual behaviour;
  • a very good sense of organisation, planning and time-keeping.
  1. Warranty

The tenderer must indicate the warrantee on the works.

 

Annex II Tender form

Section 1

Presentation of the tenderer

EEAS-DELBWA………-SER-FWC 2020 PAINTING SERVICES

 

Official name of legal entity

State of the headquarters (legal persons) or of the domicile (natural persons) of the legal entity

Main registration number

Leader

 

 

 

Member

 

 

 

[insert as many rows as necessary]

 

 

 

 

CONTACT PERSON FOR THIS TENDER

Name

 

Position

 

Address

 

e-mail

 

 

 

Name(s) and signature(s) of the legal representative(s) of the tenderer*:

*in case of joint tender, the form shall be signed by the legal representative of each member of the group as indicated above under "Tenderer".

 

Stamp, date and place

Section 2

Legal entity form

 

Please submit a signed Legal Entity Form with its supporting evidence. The form is attached and available at

http://ec.europa.eu/budget/contracts_grants/info_contracts/legal_entities/legal_entities_en.cfm .

When the tenderer is a legal person, a legible copy of the notice of appointment of the persons authorised to represent the tenderer in dealings with third parties and in legal proceedings, or a copy of the publication of such appointment if the legislation which applies to the legal entity concerned requires such publication. Any delegation of this authorisation to another representative not indicated in the official appointment must be evidenced. When the tenderer is a natural person, a proof of registration on a professional or trade register or any other official document showing the registration number. The legally constituted consortium must present its own Legal Entity Form which is different from the Legal Entity Form of each individual member of the group;

 

Financial identification form

Please submit a signed financial identification form and its supporting evidence. The form is attached and available at

http://ec.europa.eu/budget/contracts_grants/info_contracts/financial_id/financial_id_en.cfm, (bank account file - BAF). Even in case of joint tenders, one form must be submitted;

 

 

 

Section 3

Declaration on honour on exclusion criteria and selection criteria

The undersigned ……………………….... [name of the signatory of this form], representing:

(only if the candidate is a natural person) himself or herself

(only if the candidate is a legal person) the following legal person:

 

ID or passport number:

 

(‘the person’)

Full official name:

Official legal form:

Statutory registration number:

Full official address:

VAT registration number:

 

(‘the person’)

 

The person is not required to submit the declaration on exclusion criteria if the same declaration has already been submitted for the purposes of another award procedure of the same contracting authority, provided the situation has not changed, and that the time that has elapsed since the issuing date of the declaration does not exceed one year.

In this case, the signatory declares that the person has already provided the same declaration on exclusion criteria for a previous procedure and confirms that there has been no change in its situation:

Date of the declaration

Full reference to previous procedure

 

 

 

I – Situation of exclusion concerning the person

  1.  declares that the above-mentioned person is in one of the following situations:

YES

NO

  1. it is bankrupt, subject to insolvency or winding-up procedures, its assets are being administered by a liquidator or by a court, it is in an arrangement with creditors, its business activities are suspended or it is in any analogous situation arising from a similar procedure provided for under Union or national law;

 

 

  1. it has been established by a final judgement or a final administrative decision that the person is in breach of its obligations relating to the payment of taxes or social security contributions in accordance with the applicable law;

 

  1. it has been established by a final judgement or a final administrative decision that the person is guilty of grave professional misconduct by having violated applicable laws or regulations or ethical standards of the profession to which the person belongs, or by having engaged in any wrongful conduct which has an impact on its professional credibity where such conduct denotes wrongful intent or gross negligence, including, in particular, any of the following:

 

(i) fraudulently or negligently misrepresenting information required for the verification of the absence of grounds for exclusion or the fulfilment of eligibility selection criteria or in the performance of a contract or an agreement;

 

 

(ii) entering into agreement with other persons with the aim of distorting competition;

 

 

(iii) violating intellectual property rights;

 

 

(iv) attempting to influence the decision-making process of the contracting authority during the award procedure;

 

 

(v) attempting to obtain confidential information that may confer upon it undue advantages in the award procedure;

 

 

  1. it has been established by a final judgement that the person is guilty of the following:

 

(i) fraud, within the meaning of Article 3 of Directive (EU) 2017/1371 and Article 1 of the Convention on the protection of the European Communities' financial interests, drawn up by the Council Act of 26 July 1995;

 

 

(ii) corruption, as defined in Article 4(2) of Directive (EU) 2017/1371 or active corruption within the meaning of Article 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, drawn up by the Council Act of 26 May 1997, or conduct referred to in Article 2(1) of Council Framework Decision 2003/568/JHA, as well as corruption as defined in the other applicable laws;

 

 

(iii) conduct related to a criminal organisation, as referred to in Article 2 of Council Framework Decision 2008/841/JHA;

 

 

(iv) money laundering or terrorist financing, within the meaning of Article 1(3), (4) and (5) of Directive (EU) 2015/849 of the European Parliament and of the Council;

 

 

(v) terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Council Framework Decision 2002/475/JHA, respectively, or inciting, aiding, abetting or attempting to commit such offences, as referred to in Article 4 of that Decision;

 

 

(vi) child labour or other offences concerning trafficking in human beings as referred to in Article 2 of Directive 2011/36/EU of the European Parliament and of the Council;

 

 

  1. it has shown significant deficiencies in complying with the main obligations in the performance of a contract or an agreement financed by the Union’s budget, which has led to its early termination or to the application of liquidated damages or other contractual penalties, or which has been discovered following checks, audits or investigations by a contracting authority, the European Anti-Fraud Office (OLAF) or the Court of Auditors;

 

 

  1. it has been established by a final judgment or final administrative decision that the person has committed an irregularity within the meaning of Article 1(2) of Council Regulation (EC, Euratom) No 2988/95;

 

 

  1. it has been established by a final judgment or final administrative decision that the person has created an entity under a different jurisdiction with the intent to circumvent fiscal, social or any other legal obligations in the jurisdiction of its registered office, central administration or principal place of business.

 

 

  1. (only for legal persons) it has been established by a final judgment or final administrative decision that the person has been created with the intent provided for in point (g).

 

 

  1. for the situations referred to in points (c) to (h) above the person is subject to:
  1. facts established in the context of audits or investigations carried out by the European Public Prosecutor's Office after its establishment, the Court of Auditors, the European Anti-Fraud Office (OLAF) or the internal auditor, or any other check, audit or control performed under the responsibility of an authorising officer of an EU institution, of a European office or of an EU agency or body;
  2. non-final judgements or non-final administrative decisions which may include disciplinary measures taken by the competent supervisory body responsible for the verification of the application of standards of professional ethics;
  3.  facts referred to in decisions of entities or persons being entrusted with EU budget implementation tasks;
  4. information transmitted by Member States implementing Union funds;
  5. decisions of the Commission relating to the infringement of Union competition law or of a national competent authority relating to the infringement of Union or national competition law; or
  6. decisions of exclusion by an authorising officer of an EU institution, of a European office or of an EU agency or body.

 

 

II – SITUATIONS OF EXCLUSION CONCERNING NATURAL OR LEGAL PERSONS WITH POWER OF REPRESENTATION, DECISION-MAKING OR CONTROL OVER THE LEGAL PERSON AND BENEFICIAL OWNERS

Not applicable to natural persons, Member States and local authorities

  1. declares that a natural or legal person who is a member of the administrative, management or supervisory body of the above-mentioned legal person, or who has powers of representation, decision or control with regard to the above-mentioned legal person (this covers e.g. company directors, members of management or supervisory bodies, and cases where one natural or legal person holds a majority of shares), or a beneficial owner of the person (as referred to in point 6 of article 3 of Directive (EU) No 2015/849) is in one of the following situations:

YES

NO

N/A

Situation (c) above (grave professional misconduct)

 

 

 

Situation (d) above (fraud, corruption or other criminal offence)

 

 

 

Situation (e) above (significant deficiencies in performance of a contract )

 

 

 

Situation (f) above (irregularity)

 

 

 

Situation (g) above (creation of an entity with the intent to circumvent legal obligations)

 

 

 

Situation (h) above (person created with the intent to circumvent legal obligations)

 

 

 

Situation (i) above

 

 

 

 

III – SITUATIONS OF EXCLUSION CONCERNING NATURAL OR LEGAL PERSONS ASSUMING UNLIMITED LIABILITY FOR THE DEBTS OF THE LEGAL PERSON

  1.  declares that a natural or legal person that assumes unlimited liability for the debts of the above-mentioned legal person is in one of the following situations:

YES

NO

N/A

Situation (a) above (bankruptcy)

 

 

 

Situation (b) above (breach in payment of taxes or social security contributions)

 

 

 

 

IV – GROUNDS FOR REJECTION FROM THIS PROCEDURE

(4) declares that the above-mentioned person:

YES

NO

Was previously involved in the preparation of the procurement documents used in this award procedure, where this entailed a breach of the principle of equality of treatment including distortion of competition that cannot be remedied otherwise.

 

 

 

V – REMEDIAL MEASURES

If the person declares one of the situations of exclusion listed above, it must indicate measures it has taken to remedy the exclusion situation, thus demonstrating its reliability. This may include e.g. technical, organisational and personnel measures to prevent further occurrence, compensation of damage or payment of fines or of any taxes or social security contributions. The relevant documentary evidence which illustrates the remedial measures taken must be provided in annex to this declaration. This does not apply for situations referred in point (d) of this declaration.

VI – EVIDENCE UPON REQUEST

Upon request and within the time limit set by the contracting authority the person must provide information on natural or legal persons that are members of the administrative, management or supervisory body or that have powers of representation, decision or control, including legal and natural persons within the ownership and control structure and beneficial owners.

It must also provide the following evidence concerning the person itself and the natural or legal persons on whose capacity the person intends to rely, or a subcontractor and concerning the natural or legal persons which assume unlimited liability for the debts of the person:

For situations described in (a), (c), (d), (f), (g) and (h), production of a recent extract from the judicial record is required or, failing that, an equivalent document recently issued by a judicial or administrative authority in the country of establishment of the person showing that those requirements are satisfied.

For the situation described in point (b), production of recent certificates issued by the competent authorities of the State concerned are required. These documents must provide evidence covering all taxes and social security contributions for which the person is liable, including for example, VAT, income tax (natural persons only), company tax (legal persons only) and social security contributions. Where any document described above is not issued in the country concerned, it may be replaced by a sworn statement made before a judicial authority or notary or, failing that, a solemn statement made before an administrative authority or a qualified professional body in its country of establishment.

The person is not required to submit the evidence if it has already been submitted for another award procedure of the same contracting authority. The documents must have been issued no more than one year before the date of their request by the contracting authority and must still be valid at that date.

The signatory declares that the person has already provided the documentary evidence for a previous procedure and confirms that there has been no change in its situation:

Document

Full reference to previous procedure

Insert as many lines as necessary.

 

 

VII – SELECTION CRITERIA

  1. declares that the above-mentioned person complies with the selection criteria applicable to it individually as provided in the tender specifications:

YES

NO

N/A

  1. It has the legal and regulatory capacity to pursue the professional activity needed for performing the contract as required in section 5.2.1 of the tender specifications;

 

 

 

  1. It fulfills the applicable economic and financial criteria indicated in section 5.2.2 of the tender specifications;

 

 

 

  1. It fulfills the applicable technical and professional criteria indicated in section 5.2.3 of the tender specifications.

 

 

 

 

 

  1.  if the above-mentioned person is the sole tenderer or the leader in case of joint tender, declares that:

YES

NO

N/A

  1. the tenderer, including all members of the group in case of joint tender and including subcontractors if applicable, complies with all the selection criteria for which a consolidated asseessment will be made as provided in the tender specifications.

 

 

 

     

 

VIII – EVIDENCE FOR SELECTION

The signatory declares that the above-mentioned person is able to provide the necessary supporting documents listed in the relevant sections of the tender specifications and which are not available electronically upon request and without delay.

The person is not required to submit the evidence if it has already been submitted for another procurement procedure of the same contracting authority. The documents must have been issued no more than one year before the date of their request by the contracting authority and must still be valid at that date.

The signatory declares that the person has already provided the documentary evidence for a previous procedure and confirms that there has been no change in its situation:

Document

Full reference to previous procedure

Insert as many lines as necessary.

 

 

The above-mentioned person must immediately inform the contracting authority of any changes in the situations as declared.

 

The above-mentioned person may be subject to rejection from this procedure and to administrative sanctions (exclusion or financial penalty) if any of the declarations or information provided as a condition for participating in this procedure prove to be false.

 

Full name                                                                                Date                                                                   Signature

 

 

 

 

 

Section 4

Evidence on selection criteria

If the supporting documents on the selection criteria are requested (see point 5.2 of the tender specifications), the tenderers shall complete the forms and/or submit the supporting documents listed here below.

Legal and regulatory capacity criteria

a)    Evidence on enrolment in a relevant professional or trade register, except for international organisations

 

  1. Evidence of professional and liability risk indemnity insurance valid for the execution of services foreseen in the present contract notice in The Republic of Botswana.

 

Economic and financial capacity criteria

a)    Income statements (Profit and Loss Statement) for the last two financial years for which accounts have been closed.

Technical and professional capacity criteria

a)      List of references and / or clients' reference letters in the fields related to the painting service contracts performed during the past three calendar years indicated in point 2 specifying whether the contract has been carried out in a professional manner in compliance with the contractual terms.

 

 

The following annexes shall be completed by the tenderer and send as part of its tender. The annexes shall be completed with tenderer's replies. The tenderers shall insert in the form itself the specific references to all the documents included in its tender.

Section 5

Technical tender

Table of compliance with the requirements in the procurement documents

EEAS-DELBWA………-SER-FWC 2020  PAINTING SERVICES

requirement

Yes / No

Tenderer's reply and or comments

Will there be proper preparation of all surfaces to be painted prior to painting?  (Surfaces must be dry, cleaned and free of all dirt, grit, grease, mould, mildew or any other foreign substance)

 

 

Will the primer to be used if and where required be of a high, durable quality?  (Specify in comments)

 

 

Will all cracks and holes in the wall be filled with spackle and sanded smooth prior to painting the surface?

 

 

Does all equipment and material comply with Botswana standards? 

 

 

Is off white wall paint quoted on of a high, durable quality and of a well-known brand?  (Specify the brand in the comments)

 

 

Will drop cloths be put down on areas where painting takes place?

 

 

At completion will painted work be touched up and restored where damaged, defaced or defective and left free from blemishes?

 

 

Does the tenderer have the necessary professional and experienced staff to perform the contract?

 

 

Specify the warranty on the paint works:

 

 

Are all documents mentioned in the Selection Criteria (under point 4.2.1 – 4.2.3) included in your tender?

 

 

 

 

I, .................... , the undersigned, being the authorised legal representative of [to be completed with the name of the tenderer; for joint tenders, this must include all members], hereby declare that we have examined and accept without reserve or restriction all the terms and conditions set out in the invitation to tender, in the tender specifications and in the draft purchase order for the tender procedure referred to above and, where appropriate, waive the tenderer's own general or specific terms and conditions. We offer to provide the services on the basis of our technical tender and our financial tender which do not diverge in any way from the requirements described in the tender documents as drafted by the contracting authority. Our tender complies with all the technical requirements indicated in the tender specifications.

We also undertake to respect these requirements scrupulously during the performance of the contract in case we become the awardee of the contract.

 

 

 

 

 

Name of the legal representative of the tenderer:

 

 

 

 

Signature:                                                                                       Date:]

 

 

 

 

Annex A -Financial tender

Price schedule over the duration of the contract in BWP

Item

Description

Type of unit

Number of units over the duration of the contract

Unit price in BWP 

 

Total price in BWP   

 

1

2

3

4

5

6 = 4 x 5

A

Plot 3166

Main house, servants quarter, cottage

2026 sqm

 

 

B

Plot 4979

Main house, cottage, double garage

877 sqm

 

 

C

Plot 4979

Boundary wall and mid wall

705 sqm

 

 

D

Plot 2516

Main house, cottage, garage

541 sqm

 

 

E

Plot 266

Main house, cottage, garage

569 sqm

 

 

TOTAL

 

 

 

Please note that the prices should be quoted free of all duties, taxes and other charges including VAT, as the Delegation of the European Union to the Republic of Botswana is exempt from such charges.

 

Prices must be all-inclusive ( = including preparation, materials i.e. paint, spackle, equipment, cleaning, all operational costs, administrative costs, logistical costs and transport costs, etc.)

 

 

Name: …………………………….                                  Date: ………………………………

 

 

Title: ………………………………                                  Signature: …………………………

 

Name of tenderer:

Name of the legal representative of the tenderer:

Date:                                                               Signature:

 

 

[1]               Delete if contractor is a natural person or a body governed by public law.

[2]               Delete if contractor is a body governed by public law. For natural persons, indicate the number of their identity card or, failing that, of their passport or equivalent.

[3]               OJ L 94 of 28.03.2014, p. 65

[4]               Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119, 4.5.2016, p. 1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG

[5]   Regulation (EU) 2018/1725 of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, OJ L 295/39, 21.11.2018, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1725&from=EN

 

[6]               Regulation (EU, EURATOM) No 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, repealing Regulation (EU, Euratom) No 966/2012:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2018:193:TOC

 

[7]               Delete if contractor is a natural person or a body governed by public law.

[8]               Delete if contractor is a body governed by public law. For natural persons, indicate the number of their identity card or, failing that, of their passport or equivalent.

[9]               OJ L 94 of 28.03.2014, p. 65

[10]             Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons w

 

EUROPEAN UNION

DELEGATION TO THE REPUBLIC OF BOTSWANA

 

 

Head of Delegation

 

 

 

Gaborone,

Ares(2020)

 

Dear Sir/Madam,

 

Subject:         EEAS-DELBWA-04/01/2020-SER-FWC PAINTING SERVICES

 

  1. The European Union Delegation to the Republic of Botswana invites you to submit a tender for the contract referred to above. The procurement documents consist in this invitation letter, the tender specifications with their annexes, the draft contract and the instructions on the procedure "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" at the following link: https://eeas.europa.eu/headquarters/headquarters-homepage/8989_en
  2. If you are interested in this contract, you should submit a tender in one of the official languages of the European Union.

You must submit your tender exclusively on paper in one original and two (2) copies.  The time limit for submission of the tender is 31 January @ 12:00.  You must use one of the means of submission listed below. Submission is understood as the time at which the tenderer hands over the tender to the post office or courier service or at the reception of the Delegation.

Means of submission

Time limit

Evidence

Address for delivery

Post

Courier

 

24:00

 

Postmark

Deposit slip of courier service

CALL FOR TENDERS

EEAS-DELBWA-…….-SER-FWC 2020 PAINTING SERVICES

EU Delegation to the Republic of Botswana

For the attention of the Head of Administration

Robinson Road, Plot 758

Gaborone

 

P.O Box 1253

Gaborone

In person (hand delivery)

13:00 local time in Botswana

Proof of receipt, signed and dated by the agent at the reception of the Delegation

Hand delivery can be received from 08.00 to 16.00 Monday to Thursdays, from 08.00 to 12.00 on Fridays. The Delegation is closed on Saturdays, Sundays and official holidays of the contracting authority.

 

  1. The period of validity of the tender, during which tenderers may not modify the terms of their tenders in any respect, is three (3)  months from the date indicated in point
  2. Before the deadline of submission of the tender, any request for additional information must be made in writing to delegation-botswana-tenders@eeas.europa.eu

The contracting authority is not bound to reply to requests for additional information received less than five working days before the date of receipt of tenders indicated in point 3.

For more details, please refer to the document "Instructions applicable to negotiated procedure for (very) low and middle-value contracts ".

  1. An on-site visit is planned on 23 January 2020 at the following address: Robinson Road, Plot 758, Gaborone. Each tenderer shall send an email at delegation-botswana-tenders@eeas.europa.eu at the latest 4 calendar days prior to the visit to know the time that is allocated to each of them.

 

 

 

Jan Sadek
Authorizing Officer by Sub-Delegation

 

Annexes:

- Tender specifications, Annex I

- Technical specifications, Annex II

- Draft service framework contract

 

 

 

 

 

 

 

Annex 1 – technical tender

Statement of compliance with the tender documents

EEAS-04/01/2020-DELBWA-SER

 

 

I, .................... , the undersigned, being the authorised legal representative of [to be completed with the name of the tenderer; for joint tenders, this must include all members], hereby declare that we have examined and accept without reserve or restriction all the terms and conditions set out in the invitation to tender, in the tender specifications and in the draft purchase order for the tender procedure referred to above and, where appropriate, waive the tenderer's own general or specific terms and conditions. We offer to provide the services on the basis of our technical tender and our financial tender which do not diverge in any way from the requirements described in the tender documents as drafted by the contracting authority. Our tender complies with all the technical requirements indicated in the tender specifications.

We also undertake to respect these requirements scrupulously during the performance of the contract in case we become the awardee of the contract.

 

 

 

 

 

Name of the legal representative of the tenderer:

 

 

 

 

Signature:                                                                     Date:]

 

 

HEADING

 

 

 

 

 

 

 

 

 

SERVICE FRAMEWORK CONTRACT

NUMBER — EEAS-XXX- DELBWA-SER-FWC-2020

1. The [European Union (‘the Union’), represented by the European Union Delegation to Botswana and SADC (‘the contracting authority’), represented for the purposes of signing this framework contract by Mr Jan Sadek, Head of Delegation,

of the one part and

2. [Full official name]

[Official legal form ] [1]

[Statutory registration number][2]

[Full official address]

[VAT registration number]

(‘the contractor’), represented for the purpose of the signature of this framework contract by [forename, surname, function of legal representative and name of company in the case of a joint tender],

on the other part,

 

 

 

HAVE AGREED

 

to the special conditions, the general conditions for framework contracts for services and the following annexes:

Annex I –         Tender specifications (reference No [complete] of [insert date])

Annex II –        Contractor’s tender (reference No [complete] of [insert date])

Annex III –      Model for order form

which form an integral part of this framework contract (‘the FWC’).

This FWC sets out:

  1. the procedure by which the contracting authority may order services from the contractor;
  2. the provisions that apply to any specific contract which the contracting authority and the contractor may conclude under this FWC; and
  3. the obligations of the parties during and after the duration of this FWC.

All documents issued by the contractor (end-user agreements, general terms and conditions, etc.) except its tender are held inapplicable, unless explicitly mentioned in the special conditions of this FWC. In all circumstances, in the event of contradiction between this FWC and documents issued by the contractor, this FWC prevails, regardless of any provision to the contrary in the contractor’s documents.

 

 

 

Special Conditions

Order of priority of provisions

If there is any conflict between different provisions in this FWC, the following rules must be applied:

  1. The provisions set out in the special conditions take precedence over those in the other parts of the FWC.
  2. The provisions set out in the general conditions take precedence over those in the order form and specific contract (Annex III)
  3. The provisions set out in the order form and specific contract (Annex III) take precedence over those in the other annexes.
  4. The provisions set out in the tender specifications (Annex I) take precedence over those in the tender (Annex II).
  5. The provisions set out in the FWC take precedence over those in the specific contracts.

Any reference to specific contracts applies also to order forms.

Subject matter

The subject matter of the FWC is [short description of subject].

Entry into force and duration of the FWC

I.3.1    The FWC enters into force [on the date on which the last party signs it].

I.3.2    The implementation of the FWC cannot start before its entry into force.

I.3.3    The FWC is concluded for a period of xx months with effect from the date of its entry into force.

I.3.4    The parties must sign any specific contract before the FWC expires.

The FWC continues to apply to such specific contracts after its expiry. The services relating to such specific contracts must be performed no later than six months after the expiry of the FWC.

Type and implementation of the FWC

Type of the contract

The contracting authority awards a single FWC.

Period of provision of the services

The period for the provision of the services starts to run from the date on which the specific contract is signed by the last party.

Implementation of single FWC

The contracting authority orders services by sending the contractor a specific contract in paper format

Within five working days, the contractor must either:

- send the specific contract back to the contracting authority signed and dated; or

- send an explanation of why it cannot accept the order.

If the contractor repeatedly refuses to sign the specific contracts or repeatedly fails to send them back on time, the contractor may be considered in breach of its obligations under this FWC as set out in Article II.18.1 (c).

Prices

Maximum amount of the FWC and maximum prices

The maximum amount covering all services under this FWC is BWP  (amount in figures and in words). However, this does not bind the contracting authority to purchase for the maximum amount.

The maximum prices of the services are as listed in Annex II.

Price revision index

Price revision index is not applicable to this FWC.

Reimbursement of expenses

Reimbursement of expenses is not applicable to this FWC.

Payment arrangements

Pre-financing

Pre-financing is not applicable to this FWC.

Interim payment

Interim payment is not applicable to this FWC.

Payment of the balance

Balance payment is not applicable to this FWC.

Performance guarantee

        Performance guarantee is not applicable to this FWC.

Retention money guarantee

      Retention money guarantee is not applicable to this FWC.

Bank account

Payments must be made to the contractor’s bank account denominated in BWP, identified as follows:

Name of bank:

Full address of branch:

Exact denomination of account holder:

Full account number including bank codes:

IBAN code:

Communication details

For the purpose of this FWC, communications must be sent to the following addresses:

Contracting authority:

European Union Delegation to Botswana and SADC

Robinson Road, Plot 758

Postbox 1253, Gaborone

Email: Delegation-Botswana@eeas.europa.eu

 

٭٭٭

Contractor:

[Full name]

[Function]

[Company name]

[Full official address]

E-mail: [complete]

By derogation from this Article, different contact details for the contracting authority or the contractor may be provided in specific contracts.

Processing of personal data

Processing of personal data by the contracting authority

For the purpose of Article II.9.1,

  1. the data controller is the Head of the Delegation of the European Union to The Republic of Botswana and SADC.
  2. the data protection notice is available at:

https://eeas.europa.eu/sites/eeas/files/procurement_-_privacy_statement.pdf.

Processing of personal data by the contractor

This clause is not applicable to this FWC.

Exploitation of the results of the FWC

This clause is not applicable to this FWC.

Detailed list of modes of exploitation of the results

In accordance with Article II.13.1 whereby the Union acquires ownership of the results as defined in this FWC, including the tender specifications, these results may be used for any of the following modes of exploitation:

[a)        use for its own purposes

Licence or transfer of pre-existing rights

All pre-existing rights incorporated in the results, if any, are licensed to the Union as set out in Article II.13.2.

Provision of list of pre-existing rights and documentary evidence

The contractor must provide the contracting authority with a list of pre-existing rights as set Termination by either party

Applicable law and settlement of disputes

I.12.1  The FWC is governed by Union law, complemented, where necessary, by the law of The Republic of Botswana.

I.12.2  The courts of The Republic of Botswana have exclusive jurisdiction over any dispute regarding the interpretation, application or validity of the FWC.

I.13.1  This FWC is interinstitutional. The lead contracting authority acts on its own behalf and on behalf of the bodies listed in the title of the FWC as the contracting authorities, which provided the lead contracting authority with a power of attorney before FWC signature. The lead contracting authority signs the FWC and any amendments on behalf of itself and of all other contracting authorities.

I.13.2  Each contracting authority is responsible for the particular specific contracts it awards.

I.13.3  If the contractor has a complaint about the conclusion, performance or termination of a specific contract, the contractor remains bound by its obligations under the FWC and other specific contracts.

 

SIGNATURES

For the contractor,

[Company name/forename/surname/position]

 

Signature: _______________________

Done at [place], [date]

For the contracting authority,

[forename/surname/position]

 

Signature:_____________________

Done at [place], [date]

In duplicate in English.

 

GENERAL CONDITIONS FOR THE FRAMEWORK CONTRACT FOR SERVICES

Definitions

For the purpose of this FWC, the following definitions (indicated in italics in the text) apply:

‘Back office’: the internal system(s) used by the parties to process electronic invoices;

‘Confidential information or document’: any information or document received by either party from the other or accessed by either party in the context of the implementation of the FWC, that any of the parties has identified in writing as confidential. It may not include information that is publicly available;

‘Conflict of interest’: a situation where the impartial and objective implementation of the FWC by the contractor is compromised for reasons involving family, emotional life, political or national affinity, economic interest, or any other shared interest with the contracting authority or any third party related to the subject matter of the FWC;

‘Creator’: means any natural person who contributes to the production of the result;

‘EDI message’ (electronic data interchange): a message created and exchanged through the electronic transfer, from computer to computer, of commercial and administrative data using an agreed standard;

‘e-PRIOR’: the service-oriented communication platform that provides a series of web services and allows the exchange of standardised electronic messages and documents between the parties. This is done either through web services, with a machine-to-machine connection between the parties’ back office systems (EDI messages), or through a web application (the supplier portal). The Platform may be used to exchange electronic documents (e-documents) such as electronic requests for services, electronic specific contracts, electronic acceptance of services and electronic invoices between the parties. Technical specifications (i.e. the interface control document), details on access and user manuals are available at the following website: http://ec.europa.eu/dgs/informatics/supplier_portal/documentation/documentation_en.htm

‘Force majeure’: any unforeseeable, exceptional situation or event beyond the control of the parties that prevents either of them from fulfilling any of their obligations under the FWC. The situation or event must not be attributable to error or negligence on the part of the parties or on the part of the subcontractors and must prove to be inevitable despite their exercising due diligence. Defaults of service, defects in equipment or material or delays in making them available, labour disputes, strikes and financial difficulties may not be invoked as force majeure, unless they stem directly from a relevant case of force majeure;

‘Formal notification’ (or ‘formally notify’): form of communication between the parties made in writing by mail or email, which provides the sender with compelling evidence that the message was delivered to the specified recipient;

‘Fraud’: any intentional act or omission affecting the Union’s financial interests relating to the use or presentation of false, incorrect or incomplete statements or documents or to non-disclosure of information in violation of a specific obligation;

‘Implementation of the FWC’: the purchase of services envisaged in the FWC through the signature and performance of specific contracts;

‘Interface control document’: the guideline document which lays down the technical specifications, message standards, security standards, checks of syntax and semantics, etc. to facilitate machine-to-machine connection. This document is updated on a regular basis;

‘Irregularity’: any infringement of a provision of Union law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the Union’s budget.

‘Notification’ (or ‘notify’): form of communication between the parties made in writing including by electronic means;

‘Order form’: a simplified form of specific contract by which the contracting authority orders services under this FWC;

‘Performance of a specific contract’: the execution of tasks and delivery of the purchased services by the contractor to the contracting authority;

‘Personnel’: persons employed directly or indirectly or contracted by the contractor to implement the FWC;

‘Pre-existing material’: any material, document, technology or know-how which exists prior to the contractor using it for the production of a result in the implementation of the FWC;

‘Pre-existing right’: any industrial and intellectual property right on pre-existing material; it may consist in a right of ownership, a licence right and/or right of use belonging to the contractor, the creator, the contracting authority as well as to any other third parties;

‘Professional conflicting interest’: a situation in which the contractor’s previous or ongoing professional activities affect its capacity to implement the FWC or to perform a specific contract to an appropriate quality standard.

‘Related person’: any person who has the power to represent the contractor or to take decisions on its behalf;

‘Request for services’: a document from the contracting authority requesting that the contractors in a multiple FWC provide a specific tender for services whose terms are not entirely defined under the FWC;

‘Result’: any intended outcome of the implementation of the FWC, whatever its form or nature, which is delivered and finally or partially approved by the contracting authority. A result may be further defined in this FWC as a deliverable. A result may, in addition to materials produced by the contractor or at its request, also include pre-existing materials;

‘Specific contract’: a contract implementing the FWC and specifying details of a service to be provided;

‘Substantial error’: any infringement of a contract provision resulting from an act or omission, which causes or might cause a loss to the Union’s budget.

‘Supplier portal’: the e-PRIOR portal, which allows the contractor to exchange electronic business documents, such as invoices, through a graphical user interface; its main features can be found in the supplier portal overview document available on: http://ec.europa.eu/dgs/informatics/supplier_portal/doc/um_supplier_portal_overview.pdf

Roles and responsibilities in the event of a joint tender

In the event of a joint tender submitted by a group of economic operators and where the group does not have legal personality or legal capacity, one member of the group is appointed as leader of the group.

Severability

Each provision of this FWC is severable and distinct from the others. If a provision is or becomes illegal, invalid or unenforceable to any extent, it must be severed from the remainder of the FWC. This does not affect the legality, validity or enforceability of any other provisions of the FWC, which continue in full force and effect. The illegal, invalid or unenforceable provision must be replaced by a legal, valid and enforceable substitute provision which corresponds as closely as possible with the actual intent of the parties under the illegal, invalid or unenforceable provision. The replacement of such a provision must be made in accordance with Article II.11. The FWC must be interpreted as if it had contained the substitute provision as from its entry into force.

Provision of services

II.4.1               Signature of the FWC does not guarantee any actual purchase. The contracting authority is bound only by specific contracts implementing the FWC.

II.4.2   The contractor must provide services of high quality standards, in accordance with the state of the art in the industry and the provisions of this FWC, in particular the tender specifications and the terms of its tender.

II.4.3   The contractor must comply with the minimum requirements provided for in the tender specifications. This includes compliance with applicable obligations under environmental, social and labour law established by Union law, national law and collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU[3], compliance with data protection obligations resulting from Regulation (EU) 2016/679[4] and Regulation (EU) 2018/1725[5].

II.4.4   The contractor must obtain any permit or licence required in the State where the services are to be provided.

II.4.5   All periods specified in the FWC are calculated in calendar days, unless otherwise specified.

II.4.6   The contractor must not present itself as a representative of the contracting authority and must inform third parties that it is not part of the European public service.

II.4.7   The contractor is responsible for the personnel who carry out the services and exercises its authority over its personnel without interference by the contracting authority. The contractor must inform its personnel that:

  1. they may not accept any direct instructions from the contracting authority; and
  2. their participation in providing the services does not result in any employment or contractual relationship with the contracting authority.

II.4.8   The contractor must ensure that the personnel implementing the FWC and any future replacement personnel possess the professional qualifications and experience required to provide the services, as the case may be on the basis of the selection criteria set out in the tender specifications.

II.4.9   At the contracting authority’s reasoned request, the contractor must replace any member of personnel who:

  1. does not have the expertise required to provide the services; or
  2. has caused disruption at the premises of the contracting authority.

The contractor bears the cost of replacing its personnel and is responsible for any delay in providing the services resulting from the replacement of personnel.

II.4.10 The contractor must record and report to the contracting authority any problem that affects its ability to provide the services. The report must describe the problem, state when it started and what action the contractor is taking to resolve it.

Communication between the parties

Form and means of communication

Any communication of information, notices or documents under the FWC must:

  1. be made in writing in paper or electronic format in the language of the contract;
  2. bear the FWC number and, if applicable, the specific contract number;
  3. be made using the relevant communication details set out in Article I.8; and
  4. be sent by mail, email or, for the documents specified in the special conditions, via e-PRIOR.

If a party requests written confirmation of an e-mail within a reasonable time, the other party must provide an original signed paper version of the communication as soon as possible.

The parties agree that any communication made by email has full legal effect and is admissible as evidence in judicial proceedings.

Date of communications by mail and email

Any communication is deemed to have been made when the receiving party receives it, unless this FWC contract refers to the date when the communication was sent.

E-mail is deemed to have been received by the receiving party on the day of dispatch of that e-mail, provided that it is sent to the e-mail address indicated in Article I.8. The sending party must be able to prove the date of dispatch. In the event that the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the communication by email or mail. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline.

Mail sent to the contracting authority is deemed to have been received by the contracting authority on the date on which the department responsible referred to in Article I.8 registers it.

Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message was delivered to the specified recipient.

Submission of e-documents via e-PRIOR

  1. If provided for in the special conditions, the exchange of electronic documents (e-documents) such as requests for services, specific contracts and invoices between the parties is automated through the use of the e-PRIOR platform. This platform provides two possibilities for such exchanges: either through web services (machine-to-machine connection) or through a web application (the supplier portal).
  2. The contracting authority takes the necessary measures to implement and maintain electronic systems that enable the supplier portal to be used effectively.
  3. In the case of machine-to-machine connection, a direct connection is established between the parties’ back offices. In this case, the parties take the measures necessary on their side to implement and maintain electronic systems that enable the machine-to-machine connection to be used effectively. The electronic systems are specified in the interface control document. The contractor (or leader in the case of a joint tender) must take the necessary technical measures to set up a machine-to-machine connection and at its own cost.
  4. If communication via the supplier portal or via the web services (machine-to-machine connection) is hindered by factors beyond the control of one party, it must notify the other immediately and the parties must take the necessary measures to restore this communication.
  5. If it is impossible to restore the communication within two working days, one party must notify the other that alternative means of communication specified in Article II.5.1 will be used until the supplier portal or the machine-to-machine connection is restored.
  6. When a change in the interface control document requires adaptations, the contractor (or leader in the case of a joint tender) has up to six months from receipt of the notification to implement this change. This period can be shortened by mutual agreement of the parties. This period does not apply to urgent measures required by the security policy of the contracting authority to ensure integrity, confidentiality and non-repudiation of information and the availability of e-PRIOR, which must be applied immediately.

Validity and date of e-documents

  1. The parties agree that any e-document, including related attachments exchanged via e-PRIOR:
  1. is considered as equivalent to a paper document;
  2. is deemed to be the original of the document;
  3. is legally binding on the parties once an e-PRIOR authorised person has performed the ‘sign’ action in e-PRIOR and has full legal effect; and
  4. constitutes evidence of the information contained in it and is admissible as evidence in judicial proceedings.
  1. The parties expressly waive any rights to contest the validity of such a document solely on the grounds that communications between the parties occurred through e-PRIOR or that the document has been signed through e-PRIOR. If a direct connection is established between the parties’ back offices to allow electronic transfer of documents, the parties agree that an e-document, sent as mentioned in the interface control document, qualifies as an EDI message.
  2. If the e-document is dispatched through the supplier portal, it is deemed to have been legally issued or sent when the contractor (or leader in the case of a joint tender) is able to successfully submit the e-document without any error messages. The generated PDF and XML document for the e-document are considered as a proof of receipt by the contracting authority.
  3. In the event that an e-document is dispatched using a direct connection established between the parties’ back offices, the e-document is deemed to have been legally issued or sent when its status is ‘received’ as defined in the interface control document.
  4. When using the supplier portal, the contractor (or leader in the case of a joint tender) can download the PDF or XML message for each e-document for one year after submission. After this period, copies of the e-documents are no longer available for automatic download from the supplier portal.

 Authorised persons in e-PRIOR

The contractor submits a request for each person who needs to be assigned the role of ‘user’ in e-PRIOR. These persons are identified by means of the European Communication Authentication Service (ECAS) and authorised to access and perform actions in e-PRIOR within the permissions of the user roles that the contracting authority has assigned to them.

User roles enabling these e-PRIOR authorised persons to sign legally binding documents such as specific tenders or specific contracts are granted only upon submission of supporting documents proving that the authorised person is empowered to act as a legal representative of the contractor.

Liability

II.6.1   The contracting authority is not liable for any damage or loss caused by the contractor, including any damage or loss to third parties during or as a consequence of implementation of the FWC.

II.6.2   If required by the relevant applicable legislation, the contractor must take out an insurance policy against risks and damage or loss relating to the implementation of the FWC. It must also take out supplementary insurance as reasonably required by standard practice in the industry. Upon request, the contractor must provide evidence of insurance coverage to the contracting authority.

II.6.3   The contractor is liable for any loss or damage caused to the contracting authority during or as a consequence of implementation of the FWC, including in the event of subcontracting, but only up to an amount not exceeding three times the total amount of the relevant specific contract. However, if the damage or loss is caused by the gross negligence or wilful misconduct of the contractor or of its personnel or subcontractors, the contractor is liable for the whole amount of the damage or loss.

II.6.4   If a third party brings any action against the contracting authority in connection with the implementation of the FWC, including any action for alleged breach of intellectual property rights, the contractor must assist the contracting authority in the legal proceedings, including by intervening in support of the contracting authority upon request.
If the contracting authority’s liability towards the third party is established and that such liability is caused by the contractor during or as a consequence of the implementation of the FWC, Article II.6.3 applies.

II.6.5   If the contractor is composed of two or more economic operators (i.e. who submitted a joint tender), they are all jointly and severally liable to the contracting authority for the implementation of the FWC.

II.6.6   The contracting authority is not liable for any loss or damage caused to the contractor during or as a consequence of implementation of the FWC, unless the loss or damage was caused by wilful misconduct or gross negligence of the contracting authority.

Conflict of interest and professional conflicting interests

II.7.1   The contractor must take all the necessary measures to prevent any situation of conflict of interest or professional conflicting interest.

II.7.2   The contractor must notify the contracting authority in writing as soon as possible of any situation that could constitute a conflict of interest or a professional conflicting interest during the implementation of the FWC. The contractor must immediately take action to rectify the situation.

The contracting authority may do any of the following:

  1. verify that the contractor’s action is appropriate;
  2. require the contractor to take further action within a specified deadline;
  3. decide not to award a specific contract to the contractor.

II.7.3   The contractor must pass on all the relevant obligations in writing to:

  1. its personnel;
  2.  any natural person with the power to represent it or take decisions on its behalf;
  3. third parties involved in the implementation of the FWC, including subcontractors.

The contractor must also ensure that the persons referred to above are not placed in a situation which could give rise to conflicts of interest.

Confidentiality

II.8.1.  The contracting authority and the contractor must treat with confidentiality any information or documents, in any format, disclosed in writing or orally, relating to the implementation of the FWC and identified in writing as confidential.

II.8.2.  Each party must:

(a)   not use confidential information or documents for any purpose other than to perform its obligations under the FWC or a specific contract without the prior written agreement of the other party;

(b)   ensure the protection of such confidential information or documents with the same level of protection as its own confidential information or documents and in any case with due diligence;

(c)   not disclose, directly or indirectly, confidential information or documents to third parties without the prior written agreement of the other party.

II.8.3   The confidentiality obligations set out in this Article are binding on the contracting authority and the contractor during the implementation of the FWC and for as long as the information or documents remain confidential unless:

(a)   the disclosing party agrees to release the receiving party from the confidentiality obligation earlier;

(b)   the confidential information or documents become public through other means than a breach of the confidentiality obligation;

(c)   the applicable law requires the disclosure of the confidential information or documents.

II.8.4   The contractor must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the implementation of the FWC a commitment that they will comply with this Article. At the request of the contracting authority, the contractor must provide a document providing evidence of this commitment.

Processing of personal data

II.9.1   Processing of personal data by the contracting authority

Any personal data included in or relating to the FWC, including its implementation, shall be processed in accordance with Regulation (EU) 2018/1725. Such data shall be processed solely for the purposes of the implementation, management and monitoring of the FWC by the data controller.

 

The contractor or any other person whose personal data is processed by the data controller in relation to this FWC has specific rights as a data subject under Chapter III (Articles 14-25) of Regulation (EU) 2018/1725, in particular the right to access, rectify or erase their personal data and the right to restrict or, where applicable, the right to object to processing or the right to data portability.

 

Should the contractor or any other person whose personal data is processed in relation to this FWC have any queries concerning the processing of its personal data, it shall address itself to the data controller. They may also address themselves to the Data Protection Officer of the data controller. They have the right to lodge a complaint at any time to the European Data Protection Supervisor.

 

Details concerning the processing of personal data are available in the data protection notice referred to in Article I.9.

II.9.2   Processing of personal data by the contractor

The processing of personal data by the contractor shall meet the requirements of Regulation (EU) 2018/1725 and be processed solely for the purposes set out by the controller.

The contractor shall assist the controller for the fulfilment of the controller’s obligation to respond to requests for exercising rights of person whose personal data is processed in relation to this FWC as laid down in Chapter III (Articles 14-25) of Regulation (EU) 2018/1725. The contractor shall inform without delay the controller about such requests.

The contractor may act only on documented written instructions and under the supervision of the controller, in particular with regard to the purposes of the processing, the categories of data that may be processed, the recipients of the data and the means by which the data subject may exercise its rights.

The contractor shall grant personnel access to the data to the extent strictly necessary for the implementation, management and monitoring of the FWC. The contractor must ensure that personnel authorised to process personal data has committed itself to confidentiality or is under appropriate statutory obligation of confidentiality in accordance with the provisions of Article II.8.

 

The contractor shall adopt appropriate technical and organisational security measures, giving due regard to the risks inherent in the processing and to the nature, scope, context and purposes of processing, in order to ensure, in particular, as appropriate:

 

  1. the pseudonymisation and encryption of personal data;
  2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
  4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;
  5. measures to protect personal data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to personal data transmitted, stored or otherwise processed.

The contractor shall notify relevant personal data breaches to the controller without undue delay and at the latest within 48 hours after the contractor becomes aware of the breach. In such cases, the contractor shall provide the controller with at least the following information:

 

  1. nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
  2. likely consequences of the breach;
  3. measures taken or proposed to be taken to address the breach, including, where appropriate, measures to mitigate its possible adverse effects.

The contractor shall immediately inform the data controller if, in its opinion, an instruction infringes Regulation (EU) 2018/1725, Regulation (EU) 2016/679, or other Union or Member State data protection provisions as referred to in the tender specifications.

The contractor shall assist the controller for the fulfilment of its obligations pursuant to Article 33 to 41 under Regulation (EU) 2018/1725 to:

  1. ensure compliance with its data protection obligations regarding the security of the processing, and  the confidentiality of electronic communications and directories of users;
  2. notify a personal data breach to the European Data Protection Supervisor;
  3. communicate a personal data breach without undue delay to the data subject, where applicable;
  4. carry out data protection impact assessments and prior consultations as necessary.

The contractor shall maintain a record of all data processing operations carried on behalf of the controller, transfers of personal data, security breaches, responses to requests for exercising rights of people whose personal data is processed and requests for access to personal data by third parties.

The contracting authority is subject to Protocol 7 of the Treaty on the Functioning of the European Union on the privileges and immunities of the European Union, particularly as regards the inviolability of archives (including the physical location of data and services as set out in Article I.9.2) and data security, which includes personal data held on behalf of the contracting authority in the premises of the contractor or subcontractor.

The contractor shall notify the contracting authority without delay of any legally binding request for disclosure of the personal data processed on behalf of the contracting authority made by any national public authority, including an authority from a third country. The contractor may not give such access without the prior written authorisation of the contracting authority.

The duration of processing of personal data by the contractor will not exceed the period referred to in Article II.24.2. Upon expiry of this period, the contractor shall, at the choice of the controller, return, without any undue delay in a commonly agreed format, all personal data processed on behalf of the controller and the copies thereof or shall effectively delete all personal data unless Union or national law requires a longer storage of personal data.

For the purpose of Article II.10, if part or all of the processing of personal data is subcontracted to a third party, the contractor shall pass on the obligations referred to in Articles I.9.2 and II.9.2 in writing to those parties, including subcontractors. At the request of the contracting authority, the contractor shall provide a document providing evidence of this commitment.

Subcontracting

II.10.1   The contractor must not subcontract and have the FWC implemented by third parties beyond the third parties already mentioned in its tender without prior written authorisation from the contracting authority.

II.10.2   Even if the contracting authority authorises subcontracting, the contractor remains bound by its contractual obligations and is solely responsible for the implementation of the FWC.

II.10.3   The contractor must ensure that the subcontract does not affect the rights of the contracting authority under this FWC, particularly those under Articles II.8, II.13 and II.24.

II.10.4   The contracting authority may request the contractor to replace a subcontractor found to be in a situation provided for in points (d) and (e) of Article II.18.1.

Amendments

II.11.1   Any amendment to the FWC or a specific contract must be made in writing before all contractual obligations have been fulfilled. A specific contract does not constitute an amendment to the FWC.

II.11.2   Any amendment must not make changes to the FWC or a specific contract that might alter the initial conditions of the procurement procedure or result in unequal treatment of tenderers or contractors.

Assignment

II.12.1   The contractor must not assign any of the rights and obligations arising from the FWC, including claims for payments or factoring, without prior written authorisation from the contracting authority. In such cases, the contractor must provide the contracting authority with the identity of the intended assignee.

II.12.2   Any right or obligation assigned by the contractor without authorisation is not enforceable against the contracting authority.

Intellectual property rights

Ownership of the rights in the results

The Union acquires irrevocably worldwide ownership of the results and of all intellectual property rights under the FWC. The intellectual property rights so acquired include any rights, such as copyright and other intellectual or industrial property rights, to any of the results and to all technological solutions and information created or produced by the contractor or by its subcontractor in implementation of the FWC. The contracting authority may exploit and use the acquired rights as stipulated in this FWC. The Union acquires all the rights from the moment the contracting authority approves the results delivered by the contractor. Such delivery and approval are deemed to constitute an effective assignment of rights from the contractor to the Union.

The payment of the price includes any fees payable to the contractor about the acquisition of ownership of rights by the Union including for all forms of exploitation and of use of the results.

Licensing rights on pre-existing materials

Unless provided otherwise in the special conditions, the Union does not acquire ownership of pre-existing rights under this FWC.

The contractor licenses the pre-existing rights on a royalty-free, non-exclusive and irrevocable basis to the Union, which may use the pre-existing materials for all the modes of exploitation set out in this FWC or in specific contracts. All pre-existing rights are licensed to the Union from the moment the results are delivered and approved by the contracting authority.

The licensing of pre-existing rights to the Union under this FWC covers all territories worldwide and is valid for the duration of intellectual property rights protection.

The payment of the price as set out in the specific contracts is deemed to also include any fees payable to the contractor in relation to the licensing of pre-existing rights to the Union, including for all forms of exploitation and of use of the results.

Where implementation of the FWC requires that the contractor uses pre-existing materials belonging to the contracting authority, the contracting authority may request that the contractor signs an adequate licence agreement. Such use by the contractor will not entail any transfer of rights to the contractor and is limited to the needs of this FWC.

Exclusive rights

The Union acquires the following exclusive rights:

  1. reproduction: the right to authorise or prohibit direct or indirect, temporary or permanent reproduction of the results by any means (mechanical, digital or other) and in any form, in whole or in part;
  2. communication to the public: the exclusive right to authorise or prohibit any display, performance or communication to the public, by wire or wireless means, including the making available to the public of the results in such a way that members of the public may access them from a place and at a time individually chosen by them; this right also includes the communication and broadcasting by cable or by satellite;
  3. distribution: the exclusive right to authorise or prohibit any form of distribution of results or copies of the results to the public, by sale or otherwise;
  4. rental: the exclusive right to authorise or prohibit rental or lending of the results or of copies of the results;
  5. adaptation: the exclusive right to authorise or prohibit any modification of the results;
  6. translation: the exclusive right to authorise or prohibit any translation, adaptation, arrangement, creation of derivative works based on the results, and any other alteration of the results, subject to the respect of moral rights of authors, where applicable;
  7. where the results are or include a database: the exclusive right to authorise or prohibit the extraction of all or a substantial part of the contents of the database to another medium by any means or in any form; and the exclusive right to authorise or prohibit the re-utilization of all or a substantial part of the contents of the database by the distribution of copies, by renting, by on-line or other forms of transmission;
  8. where the results are or include a patentable subject-matter: the right to register them as a patent and to further exploit such patent to the fullest extent;
  9. where the results are or include logos or subject-matter which could be registered as a trademark: the right to register such logo or subject-matter as a trademark and to further exploit and use it;
  10. where the results are or include know-how: the right to use such know-how as is necessary to make use of the results to the full extent provided for by this FWC, and the right to make it available to contractors or subcontractors acting on behalf of the contracting authority, subject to their signing of adequate confidentiality undertakings where necessary;
  11. where the results are documents:
            1. the right to authorise the reuse of the documents in conformity with the Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU), to the extent it is applicable and the documents fall within its scope and are not excluded by any of its provisions; for the sake of this provision, ‘reuse’ and ‘document’ have the meaning given to it by this Decision;
            1. the right to store and archive the results in line with the document management rules applicable to the contracting authority, including digitisation or converting the format for preservation or new use purposes;
  1. where the results are or incorporate software, including source code, object code and, where relevant, documentation, preparatory materials and manuals, in addition to the other rights mentioned in this Article:
            1. end-user rights, for all uses by the Union or by subcontractors acting on behalf of the Union which result from this FWC and from the intention of the parties;
            1. the rights to decompile or disassemble the software;
  1. to the extent that the contractor may invoke moral rights, the right for the contracting authority, except where otherwise provided in this FWC, to publish the results with or without mentioning the creator(s)’ name(s), and the right to decide when and whether the results may be disclosed and published.

The contractor warrants that the exclusive rights and the modes of exploitation may be exercised by the Union on all parts of the results, be they created by the contractor or consisting of pre-existing materials.

Where pre-existing materials are inserted in the results, the contracting authority may accept reasonable restrictions impacting on the above list, provided that the said materials are easily identifiable and separable from the rest, that they do not correspond to substantial elements of the results, and that, should the need arise, satisfactory replacement solutions exist, at no additional costs to the contracting authority. In such case, the contractor will have to clearly inform the contracting authority before making such choice and the contracting authority has the right to refuse it.

Identification of pre-existing rights

When delivering the results, the contractor must warrant that, for any use that the contracting authority may envisage within the limits set in this FWC, the results and the pre-existing material incorporated in the results are free of claims from creators or from any third parties and all the necessary pre-existing rights have been obtained or licensed.

To that effect, the contractor must establish a list of all pre-existing rights to the results of this FWC or parts thereof, including identification of the rights’ owners. If there are no pre-existing rights to the results, the contractor must provide a declaration to that effect. The contractor must provide this list or declaration to the contracting authority together with the invoice for payment of the balance at the latest.

  Evidence of granting of pre-existing rights

Upon request by the contracting authority, the contractor must provide evidence that it has the ownership or the right to use all the listed pre-existing rights, except for the rights owned or licensed by the Union. The contracting authority may request this evidence even after the end of this FWC.

This evidence may refer, for example, to rights to: parts of other documents, images, graphs, fonts, tables, data, software, technical inventions, know-how, IT development tools, routines, subroutines or other programs (‘background technology’), concepts, designs, installations or pieces of art, data, source or background materials or any other parts of external origin.

This evidence must include, as appropriate:

  1. the name and version number of a software product;
  2. the full identification of the work and its author, developer, creator, translator, data entry person, graphic designer, publisher, editor, photographer, producer;
  3. a copy of the licence to use the product or of the agreement granting the relevant rights to the contractor or a reference to this licence;
  4. a copy of the agreement or extract from the employment contract granting the relevant rights to the contractor where parts of the results were created by its personnel;
  5. the text of the disclaimer notice if any.

Provision of evidence does not release the contractor from its responsibilities if it is found that it does not hold the necessary rights, regardless of when and by whom this fact is revealed.

The contractor also warrants that it possesses the relevant rights or powers to execute the transfer and that it has paid or has verified payment of all due fees including fees due to collecting societies, related to the final results.

Quotation of works in the result

In the result, the contractor must clearly point out all quotations of existing works. The complete reference should include as appropriate, the following: name of the author, title of the work, date and place of publication, date of creation, address of publication on the internet, number, volume and other information that allows the origin to be easily identified.

Moral rights of creators

By delivering the results, the contractor warrants that the creators will not object to the following on the basis of their moral rights under copyright:

  1. that their names be mentioned or not mentioned when the results are presented to the public;
  2. that the results be divulged or not after they have been delivered in their final version to the contracting authority;
  3. that the results be adapted, provided that this is done in a manner which is not prejudicial to the creator’s honour or reputation.

If moral rights on parts of the results protected by copyright may exist, the contractor must obtain the consent of creators regarding the granting or waiver of the relevant moral rights in accordance with the applicable legal provisions and be ready to provide documentary evidence upon request.

Image rights and sound recordings

If natural persons appear in a result or their voice or any other private element is recorded in a recognisable manner, the contractor must obtain a statement by these persons (or, in the case of minors, by the persons exercising parental authority) giving their permission for the described use of their image, voice or private element and, on request, submit a copy of the permission to the contracting authority. The contractor must take the necessary measures to obtain such consent in accordance with the applicable legal provisions.

Copyright notice for pre-existing rights

When the contractor retains pre-existing rights on parts of the results, reference must be inserted to that effect when the result is used as set out in Article I.10.1, with the following disclaimer: ‘© — year — European Union. All rights reserved. Certain parts are licensed under conditions to the EU’, or with any other equivalent disclaimer as the contracting authority may consider best appropriate, or as the parties may agree on a case-by-case basis. This does not apply where inserting such reference would be impossible, notably for practical reasons.

Visibility of Union funding and disclaimer

When making use of the results, the contractor must declare that they have been produced under a contract with the Union and that the opinions expressed are those of the contractor only and do not represent the contracting authority’s official position. The contracting authority may waive this obligation in writing or provide the text of the disclaimer.

Force majeure

II.14.1   If a party is affected by force majeure, it must immediately notify the other party, stating the nature of the circumstances, their likely duration and foreseeable effects.

II.14.2   A party is not liable for any delay or failure to perform its obligations under the FWC if that delay or failure is a result of force majeure. If the contractor is unable to fulfil its contractual obligations owing to force majeure, it has the right to remuneration only for the services actually provided.

II.14.3   The parties must take all necessary measures to limit any damage due to force majeure.

Liquidated damages

 Delay in delivery

If the contractor fails to perform its contractual obligations within the applicable time limits set out in this FWC, the contracting authority may claim liquidated damages for each day of delay using the following formula:

0.3 x (V/d)

where:

V is the price of the relevant purchase or deliverable or result;

d is the duration specified in the relevant specific contract for delivery of the relevant purchase or deliverable or result or, failing that, the period between the date specified in Article I.4.2 and the date of delivery or performance specified in the relevant specific contract, expressed in days.

Liquidated damages may be imposed together with a reduction in price under the conditions laid down in Article II.16.

Procedure

The contracting authority must formally notify the contractor of its intention to apply liquidated damages and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to apply liquidated damages; or

(b) of its final decision to apply liquidated damages and the corresponding amount.

Nature of liquidated damages

The parties expressly acknowledge and agree that any amount payable under this Article is not a penalty and represents a reasonable estimate of fair compensation for the damage incurred due to failure to provide the services within the applicable time limits set out in this FWC.

Claims and liability

Any claim for liquidated damages does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

Reduction in price

Quality standards

If the contractor fails to provide the service in accordance with the FWC or a specific contract (‘unperformed obligations’) or if it fails to provide the service in accordance with the expected quality levels specified in the tender specifications (‘low quality delivery’), the contracting authority may reduce or recover payments proportionally to the seriousness of the unperformed obligations or low quality delivery. This includes in particular cases where the contracting authority cannot approve a result, report or deliverable as defined in Article I.6 after the contractor has submitted the required additional information, correction or new version.

A reduction in price may be imposed together with liquidated damages under the conditions of Article II.15.

Procedure

The contracting authority must formally notify the contractor of its intention to reduce payment and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to reduce payment; or

(b) of its final decision to reduce payment and the corresponding amount,.

Claims and liability

Any reduction in price does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

Suspension of the implementation of the FWC

Suspension by the contractor

If the contractor is affected by force majeure, it may suspend the provision of the services under a specific contract.

The contractor must immediately notify the contracting authority of the suspension. The notification must include a description of the force majeure and state when the contractor expects to resume the provision of services.

The contractor must notify the contracting authority as soon as it is able to resume performance of the specific contract, unless the contracting authority has already terminated the FWC or the specific contract.

Suspension by the contracting authority

The contracting authority may suspend the implementation of the FWC or performance of a specific contract or any part of it:

(a)   if the procedure for awarding the FWC or a specific contract or the implementation of the FWC proves to have been subject to substantial errors, irregularities or fraud;

(b)   in order to verify whether the presumed substantial errors, irregularities or fraud actually occurred.

The contracting authority must formally notify the contractor of the suspension. Suspension takes effect on the date of formal notification, or at a later date if the formal notification so provides.

The contracting authority must notify the contractor as soon as possible whether:

  1. it is lifting the suspension; or
  2. it intends to terminate the FWC or a specific contract under Article II.18.1(f) or (j).

The contractor is not entitled to compensation for suspension of any part of the FWC or a specific contract.

Termination of the FWC

Grounds for termination by the contracting authority

The contracting authority may terminate the FWC or a specific contract in the following circumstances:

  1. if provision of the services under a pending specific contract has not actually started within 15 days of the scheduled date and the contracting authority considers the new date proposed, if any, unacceptable, taking into account Article II.11.2;
  2. if the contractor is unable, through its own fault, to obtain any permit or licence required for implementation of the FWC;
  3. if the contractor does not implement the FWC or perform the specific contract in accordance with the tender specifications or request for service or is in breach of another substantial contractual obligation or repeatedly refuses to sign specific contracts. Termination of three or more specific contracts in these circumstances also constitutes grounds for termination of the FWC;
  4. if the contractor or any person that assumes unlimited liability for the debts of the contractor is in one of the situations provided for in points (a) and (b) of Article 136(1) of the Financial Regulation[6];
  5. if the contractor or any related person is subject to any of the situations provided for in points (c) to (f) of Article 136(1) or to Article 136(2) of the Financial Regulation.
  6. if the procedure for awarding the FWC or the implementation of the FWC prove to have been subject to substantial errors, irregularities or fraud;
  7. if the contractor does not comply with applicable obligations under environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU;
  8. if the contractor is in a situation that could constitute a conflict of interest or a professional conflicting interest as referred to in Article II.7;
  9. if a change to the contractor’s legal, financial, technical, organisational or ownership situation is likely to substantially affect the implementation of the FWC or substantially modify the conditions under which the FWC was initially awarded;
  10. in the event of force majeure, where either resuming implementation is impossible or the necessary ensuing amendments to the FWC or a specific contract would mean that the tender specifications are no longer fulfilled or result in unequal treatment of tenderers or contractors;
  11. if the needs of the contracting authority change and it no longer requires new services under the FWC; in such cases ongoing specific contracts remain unaffected;
  12. if the termination of the FWC with one or more of the contractors means that the multiple FWC with reopening of competition no longer has the minimum required level of competition;
  13. if the contractor is in breach of the data protection obligations resulting from Article II.9.2;
  14. if the contractor does not comply with the applicable data protection obligations resulting from Regulation (EU) 2016/679.

Grounds for termination by the contractor

The contractor may terminate the FWC or a specific contract if:

  1. it has evidence that the contracting authority has committed substantial errors, irregularities or fraud in the procedure for awarding the FWC or the implementation of the FWC;
  2. the contracting authority fails to comply with its obligations, in particular the obligation to provide the information needed for the contractor to implement the FWC or to perform a specific contract as provided for in the tender specifications.

Procedure for termination

A party must formally notify the other party of its intention to terminate the FWC or a specific contract and the grounds for termination.

The other party has 30 days following the date of receipt to submit observations, including the measures it has taken to continue fulfilling its contractual obligations. Failing that, the decision to terminate becomes enforceable the day after the time limit for submitting observations has elapsed.

If the other party submits observations, the party intending to terminate must formally notify it either of the withdrawal of its intention to terminate or of its final decision to terminate.

In the cases referred to in points (a) to (d), (g) to (i), (k) and (l) of Article II.18.1 and in Article II.18.2, the date on which the termination takes effect must be specified in the formal notification.

In the cases referred to in points (e), (f) and (j) of Article II.18.1, the termination takes effect on the day following the date on which the contractor receives notification of termination.

In addition, at the request of the contracting authority and regardless of the grounds for termination, the contractor must provide all necessary assistance, including information, documents and files, to allow the contracting authority to complete, continue or transfer the services to a new contractor or internally, without interruption or adverse effect on the quality or continuity of the services. The parties may agree to draw up a transition plan detailing the contractor’s assistance unless such plan is already detailed in other contractual documents or in the tender specifications. The contractor must provide such assistance at no additional cost, except if it can demonstrate that it requires substantial additional resources or means, in which case it must provide an estimate of the costs involved and the parties will negotiate an arrangement in good faith.

Effects of termination

The contractor is liable for damage incurred by the contracting authority as a result of the termination of the FWC or a specific contract including the cost of appointing another contractor to provide or complete the services, unless the damage was caused by the situation specified in Article II.18.1(j), (k) or (l) or in Article II.18.2. The contracting authority may claim compensation for such damage.

The contractor is not entitled to compensation for any loss resulting from the termination of the FWC or a specific contract, including loss of anticipated profits, unless the loss was caused by the situation specified in Article II.18.2.

The contractor must take all appropriate measures to minimise costs, prevent damage and cancel or reduce its commitments.

Within 60 days of the date of termination, the contractor must submit any report, deliverable or result and any invoice required for services that were provided before the date of termination.

In the case of joint tenders, the contracting authority may terminate the FWC or a specific contract with each member of the group separately  on the basis of points (d), (e) or (g) of Article II.18.1, under the conditions set out in Article II.11.2

Invoices, value added tax and e-invoicing

Invoices and value added tax

Invoices must contain the contractor’s (or leader’s in the case of a joint tender) identification data, the amount, the currency and the date, as well as the FWC reference and reference to the specific contract.

Invoices must indicate the place of taxation of the contractor (or leader in the case of a joint tender) for value added tax (VAT) purposes and must specify separately amounts not including VAT and amounts including VAT.

The contracting authority is exempt from all taxes and duties, including VAT, in accordance with Articles 3 and 4 of the Protocol on the privileges and immunities of the European Union.

Unless otherwise stated in the tender specifications, in the specific contract or in the order form, the contracting authority is exempt from all taxes, duties and other charges, including VAT, in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961 and the particular Headquarters' agreements concluded between the host state and the European Union institution, which grant an exemption equivalent to that stated in the Vienna Convention.

The contractor (or leader in the case of a joint tender) must complete the necessary formalities with the relevant authorities to ensure that the supplies and services required for implementation of the FWC are exempt from taxes and duties, including VAT.

E-invoicing

If provided for in the special conditions, the contractor (or leader in the case of a joint tender) submits invoices in electronic format if the conditions regarding electronic signature specified by Directive 2006/112/EC on VAT are fulfilled, i.e. using a qualified electronic signature or through electronic data interchange.

Reception of invoices by standard format (pdf) or email is not accepted.

Price revision

Price revision is not applicable to this FWC.

                      Ir

Payments and guarantees

Date of payment

Payments are deemed to be effected on the date when they are debited to the contracting authority’s account.

Currency

Payments are made in euros or in the currency provided for in Article I.7.

Costs of transfer

The costs of the transfer are borne as follows:

  1. the contracting authority bears the costs of dispatch charged by its bank;
  2. the contractor bears the costs of receipt charged by its bank;
  3. the party causing repetition of the transfer bears the costs for repeated transfer.

Pre-financing, performance and money retention guarantees

Pre-financing, performance and money retention guarantees are not applicable to this FWC.

Interim payments and payment of the balance

Interim payments and payment of the balance are not applicable to this FWC.

Suspension of the time allowed for payment

The contracting authority may suspend the payment periods specified in Article I.6 at any time by notifying the contractor (or leader in the case of a joint tender) that its invoice cannot be processed. The reasons the contracting authority may cite for not being able to process an invoice are:

  1. because it does not comply with the FWC;
  2. because the contractor has not produced the appropriate documents or deliverables; or
  3. because the contracting authority has observations on the documents or deliverables submitted with the invoice.

The contracting authority must notify the contractor (or leader in the case of joint tender) as soon as possible of any such suspension, giving the reasons for it.

Suspension takes effect on the date the contracting authority sends the notification. The remaining payment period resumes from the date on which the requested information or revised documents are received or the necessary further verification, including on-the-spot checks, is carried out. Where the suspension period exceeds two months, the contractor (or leader in the case of a joint tender) may request the contracting authority to justify the continued suspension.

Where the payment periods have been suspended following rejection of a document referred to in the first paragraph of this Article and the new document produced is also rejected, the contracting authority reserves the right to terminate the specific contract in accordance with Article II.18.1(c).

Interest on late payment

Suspension of the payment period as provided for in Article II.21.7 is not considered as giving rise to late payment.

Interest on late payment covers the period running from the day following the due date for payment up to and including the date of payment as defined in Article II.21.1.

However, when the calculated interest is EUR 200 or less, it must be paid to the contractor (or leader in the case of a joint tender) only if it requests it within two months of receiving late payment.

Reimbursements

Reimbursement of expenses is not applicable to this FWC.

Recovery

II.23.1   If an amount is to be recovered under the terms of the FWC, the contractor must repay the contracting authority the amount in question.

      1. Recovery procedure

Before recovery, the contracting authority must formally notify the contractor of its intention to recover the amount it claims, specifying the amount due and the reasons for recovery and inviting the contractor to make any observations within 30 days of receipt.

If no observations have been submitted or if, despite the observations submitted, the contracting authority decides to pursue the recovery procedure, it must confirm recovery by formally notifying a debit note to the contractor, specifying the date of payment. The contractor must pay in accordance with the provisions specified in the debit note.

If the contractor does not pay by the due date, the contracting authority may, after informing the contractor in writing, recover the amounts due:

  1. by offsetting them against any amounts owed to the contractor by the Union
  2. by calling in a financial guarantee if the contractor has submitted one to the contracting authority;
  3. by taking legal action.

Interest on late payment

If the contractor does not honour the obligation to pay the amount due by the date set by the contracting authority in the debit note, the amount due bears interest at the rate indicated in Article II.21.8. Interest on late payments will cover the period starting on the day after the due date for payment and ending on the date when the contracting authority receives the full amount owed.

Any partial payment is first entered against charges and interest on late payment and then against the principal amount.

Recovery rules in the case of joint tender

If the contract is signed by a group (joint tender), the group is jointly and severally liable under the conditions set out in Article II.6 (liability). The contracting authority first claims the full amount to the leader of the group.

If the leader does not pay by the due date and if the amount cannot be offset in accordance with Article II.23.2 (a), the contracting authority may claim the full amount to any other member of the group by notifying the debit note already sent to the leader under Article II.23.2.

Checks and audits

Checks and audits are not applicable to this FWC.

 

 

III.    MODEL ORDER FORM

 

 

 

 

 

 

   

 

 

FRAMEWORK CONTRACT

 

MODEL ORDER FORM

 

Delegation of the European Union to the Republic of Botswana

 

 

Order number: 

(Name and address of contractor)

  

 

 

Currency of payment:   BWP

 

 

Tel.:

 

 

Tender (date and reference):

 

 

E-mail: Delegation-Botswana@

eeas.europa.eu

 

 

 

 

 

This order is governed by Framework Contract No EEAS-XXX- DELBWA-SER-FWC-2020   in force from __________ to ___________

  

LISTING OF THE SUPPLIES / SERVICES

UNIT

QUANTITY

PRICE in BWP

 

and code

 

 

UNIT PRICE

TOTAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Pursuant to the provisions of Headquarters Agreement applicable to the European Union Delegation or the Vienna Convention of 18 April 1961 on diplomatic relations][other agreement, the EU is exempt from all taxes and dues, including value added tax, on payments due in respect of this contract.

 

 

 

 

 

[Packaging]

 

 

 

 

[Insurance]

 

 

 

 

[Transport]

 

 

 

 

[Assembly]

 

 

 

 

VAT

 

 

 

 

TOTAL:

 

 

 

 

Place of delivery or performance and/or Incoterm:

Contractor’s signature

 

Final date of delivery or performance:

 

 

 

Payment provisions:

 

 

Name:

 

 

 

 

 

 

Position:

 

 

[Guarantee:]

 

 

 

Date:

 

 

 

 

Date of issue:

 

 

 

 

 

 

 

Signature [name and position]:

 

 

 

   

The invoice will be paid only if the contractor has returned the signed order form.

 

 

 

HEADING

 

 

SERVICE FRAMEWORK CONTRACT

NUMBER — EEAS-XXX- DELBWA-SER-FWC-2020

1. The [European Union (‘the Union’), represented by the European Union Delegation to Botswana and SADC (‘the contracting authority’), represented for the purposes of signing this framework contract by Mr Jan Sadek, Head of Delegation,

of the one part and

2. [Full official name]

[Official legal form ] [7]

[Statutory registration number][8]

[Full official address]

[VAT registration number]

(‘the contractor’), represented for the purpose of the signature of this framework contract by [forename, surname, function of legal representative and name of company in the case of a joint tender],

on the other part,

 

 

 

HAVE AGREED

 

to the special conditions, the general conditions for framework contracts for services and the following annexes:

Annex I –         Tender specifications (reference No [complete] of [insert date])

Annex II –        Contractor’s tender (reference No [complete] of [insert date])

Annex III –      Model for order form

which form an integral part of this framework contract (‘the FWC’).

This FWC sets out:

  1. the procedure by which the contracting authority may order services from the contractor;
  2. the provisions that apply to any specific contract which the contracting authority and the contractor may conclude under this FWC; and
  3. the obligations of the parties during and after the duration of this FWC.

All documents issued by the contractor (end-user agreements, general terms and conditions, etc.) except its tender are held inapplicable, unless explicitly mentioned in the special conditions of this FWC. In all circumstances, in the event of contradiction between this FWC and documents issued by the contractor, this FWC prevails, regardless of any provision to the contrary in the contractor’s documents.

 

 

 

 

Special Conditions

    1. Order of priority of provisions

If there is any conflict between different provisions in this FWC, the following rules must be applied:

  1. The provisions set out in the special conditions take precedence over those in the other parts of the FWC.
  2. The provisions set out in the general conditions take precedence over those in the order form and specific contract (Annex III)
  3. The provisions set out in the order form and specific contract (Annex III) take precedence over those in the other annexes.
  4. The provisions set out in the tender specifications (Annex I) take precedence over those in the tender (Annex II).
  5. The provisions set out in the FWC take precedence over those in the specific contracts.

Any reference to specific contracts applies also to order forms.

    1. Subject matter

The subject matter of the FWC is [short description of subject].

    1. Entry into force and duration of the FWC

I.3.1    The FWC enters into force [on the date on which the last party signs it].

I.3.2    The implementation of the FWC cannot start before its entry into force.

I.3.3    The FWC is concluded for a period of xx months with effect from the date of its entry into force.

I.3.4    The parties must sign any specific contract before the FWC expires.

The FWC continues to apply to such specific contracts after its expiry. The services relating to such specific contracts must be performed no later than six months after the expiry of the FWC.

    1. Type and implementation of the FWC
      1. Type of the contract

The contracting authority awards a single FWC.

      1. Period of provision of the services

The period for the provision of the services starts to run from the date on which the specific contract is signed by the last party.

      1. Implementation of single FWC

The contracting authority orders services by sending the contractor a specific contract in paper format

Within five working days, the contractor must either:

- send the specific contract back to the contracting authority signed and dated; or

- send an explanation of why it cannot accept the order.

If the contractor repeatedly refuses to sign the specific contracts or repeatedly fails to send them back on time, the contractor may be considered in breach of its obligations under this FWC as set out in Article II.18.1 (c).

    1. Prices
      1. Maximum amount of the FWC and maximum prices

The maximum amount covering all services under this FWC is BWP  (amount in figures and in words). However, this does not bind the contracting authority to purchase for the maximum amount.

The maximum prices of the services are as listed in Annex II.

      1. Price revision index

Price revision index is not applicable to this FWC.

      1. Reimbursement of expenses

Reimbursement of expenses is not applicable to this FWC.

    1. Payment arrangements
      1. Pre-financing

Pre-financing is not applicable to this FWC.

      1. Interim payment

Interim payment is not applicable to this FWC.

      1. Payment of the balance

Balance payment is not applicable to this FWC.

      1. Performance guarantee

        Performance guarantee is not applicable to this FWC.

      1. Retention money guarantee

      Retention money guarantee is not applicable to this FWC.

    1. Bank account

Payments must be made to the contractor’s bank account denominated in BWP, identified as follows:

Name of bank:

Full address of branch:

Exact denomination of account holder:

Full account number including bank codes:

IBAN code:

    1. Communication details

For the purpose of this FWC, communications must be sent to the following addresses:

Contracting authority:

European Union Delegation to Botswana and SADC

Robinson Road, Plot 758

Postbox 1253, Gaborone

Email: Delegation-Botswana@eeas.europa.eu

 

٭٭٭

Contractor:

[Full name]

[Function]

[Company name]

[Full official address]

E-mail: [complete]

By derogation from this Article, different contact details for the contracting authority or the contractor may be provided in specific contracts.

    1. Processing of personal data
      1. Processing of personal data by the contracting authority

For the purpose of Article II.9.1,

  1. the data controller is the Head of the Delegation of the European Union to The Republic of Botswana and SADC.
  2. the data protection notice is available at:

https://eeas.europa.eu/sites/eeas/files/procurement_-_privacy_statement.pdf.

      1. Processing of personal data by the contractor

This clause is not applicable to this FWC.

    1. Exploitation of the results of the FWC

This clause is not applicable to this FWC.

      1. Detailed list of modes of exploitation of the results

In accordance with Article II.13.1 whereby the Union acquires ownership of the results as defined in this FWC, including the tender specifications, these results may be used for any of the following modes of exploitation:

[a)        use for its own purposes

      1. Licence or transfer of pre-existing rights

All pre-existing rights incorporated in the results, if any, are licensed to the Union as set out in Article II.13.2.

      1. Provision of list of pre-existing rights and documentary evidence

The contractor must provide the contracting authority with a list of pre-existing rights as set Termination by either party

    1. Applicable law and settlement of disputes

I.12.1  The FWC is governed by Union law, complemented, where necessary, by the law of The Republic of Botswana.

I.12.2  The courts of The Republic of Botswana have exclusive jurisdiction over any dispute regarding the interpretation, application or validity of the FWC.

I.13.1  This FWC is interinstitutional. The lead contracting authority acts on its own behalf and on behalf of the bodies listed in the title of the FWC as the contracting authorities, which provided the lead contracting authority with a power of attorney before FWC signature. The lead contracting authority signs the FWC and any amendments on behalf of itself and of all other contracting authorities.

I.13.2  Each contracting authority is responsible for the particular specific contracts it awards.

I.13.3  If the contractor has a complaint about the conclusion, performance or termination of a specific contract, the contractor remains bound by its obligations under the FWC and other specific contracts.

 

SIGNATURES

For the contractor,

[Company name/forename/surname/position]

 

Signature: _______________________

Done at [place], [date]

For the contracting authority,

[forename/surname/position]

 

Signature:_____________________

Done at [place], [date]

In duplicate in English.

 

  1. GENERAL CONDITIONS FOR THE FRAMEWORK CONTRACT FOR SERVICES
    1. Definitions

For the purpose of this FWC, the following definitions (indicated in italics in the text) apply:

‘Back office’: the internal system(s) used by the parties to process electronic invoices;

‘Confidential information or document’: any information or document received by either party from the other or accessed by either party in the context of the implementation of the FWC, that any of the parties has identified in writing as confidential. It may not include information that is publicly available;

‘Conflict of interest’: a situation where the impartial and objective implementation of the FWC by the contractor is compromised for reasons involving family, emotional life, political or national affinity, economic interest, or any other shared interest with the contracting authority or any third party related to the subject matter of the FWC;

‘Creator’: means any natural person who contributes to the production of the result;

‘EDI message’ (electronic data interchange): a message created and exchanged through the electronic transfer, from computer to computer, of commercial and administrative data using an agreed standard;

‘e-PRIOR’: the service-oriented communication platform that provides a series of web services and allows the exchange of standardised electronic messages and documents between the parties. This is done either through web services, with a machine-to-machine connection between the parties’ back office systems (EDI messages), or through a web application (the supplier portal). The Platform may be used to exchange electronic documents (e-documents) such as electronic requests for services, electronic specific contracts, electronic acceptance of services and electronic invoices between the parties. Technical specifications (i.e. the interface control document), details on access and user manuals are available at the following website: http://ec.europa.eu/dgs/informatics/supplier_portal/documentation/documentation_en.htm

‘Force majeure’: any unforeseeable, exceptional situation or event beyond the control of the parties that prevents either of them from fulfilling any of their obligations under the FWC. The situation or event must not be attributable to error or negligence on the part of the parties or on the part of the subcontractors and must prove to be inevitable despite their exercising due diligence. Defaults of service, defects in equipment or material or delays in making them available, labour disputes, strikes and financial difficulties may not be invoked as force majeure, unless they stem directly from a relevant case of force majeure;

‘Formal notification’ (or ‘formally notify’): form of communication between the parties made in writing by mail or email, which provides the sender with compelling evidence that the message was delivered to the specified recipient;

‘Fraud’: any intentional act or omission affecting the Union’s financial interests relating to the use or presentation of false, incorrect or incomplete statements or documents or to non-disclosure of information in violation of a specific obligation;

‘Implementation of the FWC’: the purchase of services envisaged in the FWC through the signature and performance of specific contracts;

‘Interface control document’: the guideline document which lays down the technical specifications, message standards, security standards, checks of syntax and semantics, etc. to facilitate machine-to-machine connection. This document is updated on a regular basis;

‘Irregularity’: any infringement of a provision of Union law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the Union’s budget.

‘Notification’ (or ‘notify’): form of communication between the parties made in writing including by electronic means;

‘Order form’: a simplified form of specific contract by which the contracting authority orders services under this FWC;

‘Performance of a specific contract’: the execution of tasks and delivery of the purchased services by the contractor to the contracting authority;

‘Personnel’: persons employed directly or indirectly or contracted by the contractor to implement the FWC;

‘Pre-existing material’: any material, document, technology or know-how which exists prior to the contractor using it for the production of a result in the implementation of the FWC;

‘Pre-existing right’: any industrial and intellectual property right on pre-existing material; it may consist in a right of ownership, a licence right and/or right of use belonging to the contractor, the creator, the contracting authority as well as to any other third parties;

‘Professional conflicting interest’: a situation in which the contractor’s previous or ongoing professional activities affect its capacity to implement the FWC or to perform a specific contract to an appropriate quality standard.

‘Related person’: any person who has the power to represent the contractor or to take decisions on its behalf;

‘Request for services’: a document from the contracting authority requesting that the contractors in a multiple FWC provide a specific tender for services whose terms are not entirely defined under the FWC;

‘Result’: any intended outcome of the implementation of the FWC, whatever its form or nature, which is delivered and finally or partially approved by the contracting authority. A result may be further defined in this FWC as a deliverable. A result may, in addition to materials produced by the contractor or at its request, also include pre-existing materials;

‘Specific contract’: a contract implementing the FWC and specifying details of a service to be provided;

‘Substantial error’: any infringement of a contract provision resulting from an act or omission, which causes or might cause a loss to the Union’s budget.

‘Supplier portal’: the e-PRIOR portal, which allows the contractor to exchange electronic business documents, such as invoices, through a graphical user interface; its main features can be found in the supplier portal overview document available on: http://ec.europa.eu/dgs/informatics/supplier_portal/doc/um_supplier_portal_overview.pdf

    1. Roles and responsibilities in the event of a joint tender

In the event of a joint tender submitted by a group of economic operators and where the group does not have legal personality or legal capacity, one member of the group is appointed as leader of the group.

    1. Severability

Each provision of this FWC is severable and distinct from the others. If a provision is or becomes illegal, invalid or unenforceable to any extent, it must be severed from the remainder of the FWC. This does not affect the legality, validity or enforceability of any other provisions of the FWC, which continue in full force and effect. The illegal, invalid or unenforceable provision must be replaced by a legal, valid and enforceable substitute provision which corresponds as closely as possible with the actual intent of the parties under the illegal, invalid or unenforceable provision. The replacement of such a provision must be made in accordance with Article II.11. The FWC must be interpreted as if it had contained the substitute provision as from its entry into force.

    1. Provision of services

II.4.1               Signature of the FWC does not guarantee any actual purchase. The contracting authority is bound only by specific contracts implementing the FWC.

II.4.2   The contractor must provide services of high quality standards, in accordance with the state of the art in the industry and the provisions of this FWC, in particular the tender specifications and the terms of its tender.

II.4.3   The contractor must comply with the minimum requirements provided for in the tender specifications. This includes compliance with applicable obligations under environmental, social and labour law established by Union law, national law and collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU[9], compliance with data protection obligations resulting from Regulation (EU) 2016/679[10] and Regulation (EU) 2018/1725[11].

II.4.4   The contractor must obtain any permit or licence required in the State where the services are to be provided.

II.4.5   All periods specified in the FWC are calculated in calendar days, unless otherwise specified.

II.4.6   The contractor must not present itself as a representative of the contracting authority and must inform third parties that it is not part of the European public service.

II.4.7   The contractor is responsible for the personnel who carry out the services and exercises its authority over its personnel without interference by the contracting authority. The contractor must inform its personnel that:

  1. they may not accept any direct instructions from the contracting authority; and
  2. their participation in providing the services does not result in any employment or contractual relationship with the contracting authority.

II.4.8   The contractor must ensure that the personnel implementing the FWC and any future replacement personnel possess the professional qualifications and experience required to provide the services, as the case may be on the basis of the selection criteria set out in the tender specifications.

II.4.9   At the contracting authority’s reasoned request, the contractor must replace any member of personnel who:

  1. does not have the expertise required to provide the services; or
  2. has caused disruption at the premises of the contracting authority.

The contractor bears the cost of replacing its personnel and is responsible for any delay in providing the services resulting from the replacement of personnel.

II.4.10 The contractor must record and report to the contracting authority any problem that affects its ability to provide the services. The report must describe the problem, state when it started and what action the contractor is taking to resolve it.

    1. Communication between the parties
      1. Form and means of communication

Any communication of information, notices or documents under the FWC must:

  1. be made in writing in paper or electronic format in the language of the contract;
  2. bear the FWC number and, if applicable, the specific contract number;
  3. be made using the relevant communication details set out in Article I.8; and
  4. be sent by mail, email or, for the documents specified in the special conditions, via e-PRIOR.

If a party requests written confirmation of an e-mail within a reasonable time, the other party must provide an original signed paper version of the communication as soon as possible.

The parties agree that any communication made by email has full legal effect and is admissible as evidence in judicial proceedings.

      1. Date of communications by mail and email

Any communication is deemed to have been made when the receiving party receives it, unless this FWC contract refers to the date when the communication was sent.

E-mail is deemed to have been received by the receiving party on the day of dispatch of that e-mail, provided that it is sent to the e-mail address indicated in Article I.8. The sending party must be able to prove the date of dispatch. In the event that the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the communication by email or mail. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline.

Mail sent to the contracting authority is deemed to have been received by the contracting authority on the date on which the department responsible referred to in Article I.8 registers it.

Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message was delivered to the specified recipient.

      1. Submission of e-documents via e-PRIOR
  1. If provided for in the special conditions, the exchange of electronic documents (e-documents) such as requests for services, specific contracts and invoices between the parties is automated through the use of the e-PRIOR platform. This platform provides two possibilities for such exchanges: either through web services (machine-to-machine connection) or through a web application (the supplier portal).
  2. The contracting authority takes the necessary measures to implement and maintain electronic systems that enable the supplier portal to be used effectively.
  3. In the case of machine-to-machine connection, a direct connection is established between the parties’ back offices. In this case, the parties take the measures necessary on their side to implement and maintain electronic systems that enable the machine-to-machine connection to be used effectively. The electronic systems are specified in the interface control document. The contractor (or leader in the case of a joint tender) must take the necessary technical measures to set up a machine-to-machine connection and at its own cost.
  4. If communication via the supplier portal or via the web services (machine-to-machine connection) is hindered by factors beyond the control of one party, it must notify the other immediately and the parties must take the necessary measures to restore this communication.
  5. If it is impossible to restore the communication within two working days, one party must notify the other that alternative means of communication specified in Article II.5.1 will be used until the supplier portal or the machine-to-machine connection is restored.
  6. When a change in the interface control document requires adaptations, the contractor (or leader in the case of a joint tender) has up to six months from receipt of the notification to implement this change. This period can be shortened by mutual agreement of the parties. This period does not apply to urgent measures required by the security policy of the contracting authority to ensure integrity, confidentiality and non-repudiation of information and the availability of e-PRIOR, which must be applied immediately.
      1. Validity and date of e-documents
  1. The parties agree that any e-document, including related attachments exchanged via e-PRIOR:
  1. is considered as equivalent to a paper document;
  2. is deemed to be the original of the document;
  3. is legally binding on the parties once an e-PRIOR authorised person has performed the ‘sign’ action in e-PRIOR and has full legal effect; and
  4. constitutes evidence of the information contained in it and is admissible as evidence in judicial proceedings.
  1. The parties expressly waive any rights to contest the validity of such a document solely on the grounds that communications between the parties occurred through e-PRIOR or that the document has been signed through e-PRIOR. If a direct connection is established between the parties’ back offices to allow electronic transfer of documents, the parties agree that an e-document, sent as mentioned in the interface control document, qualifies as an EDI message.
  2. If the e-document is dispatched through the supplier portal, it is deemed to have been legally issued or sent when the contractor (or leader in the case of a joint tender) is able to successfully submit the e-document without any error messages. The generated PDF and XML document for the e-document are considered as a proof of receipt by the contracting authority.
  3. In the event that an e-document is dispatched using a direct connection established between the parties’ back offices, the e-document is deemed to have been legally issued or sent when its status is ‘received’ as defined in the interface control document.
  4. When using the supplier portal, the contractor (or leader in the case of a joint tender) can download the PDF or XML message for each e-document for one year after submission. After this period, copies of the e-documents are no longer available for automatic download from the supplier portal.
      1.  Authorised persons in e-PRIOR

The contractor submits a request for each person who needs to be assigned the role of ‘user’ in e-PRIOR. These persons are identified by means of the European Communication Authentication Service (ECAS) and authorised to access and perform actions in e-PRIOR within the permissions of the user roles that the contracting authority has assigned to them.

User roles enabling these e-PRIOR authorised persons to sign legally binding documents such as specific tenders or specific contracts are granted only upon submission of supporting documents proving that the authorised person is empowered to act as a legal representative of the contractor.

    1. Liability

II.6.1   The contracting authority is not liable for any damage or loss caused by the contractor, including any damage or loss to third parties during or as a consequence of implementation of the FWC.

II.6.2   If required by the relevant applicable legislation, the contractor must take out an insurance policy against risks and damage or loss relating to the implementation of the FWC. It must also take out supplementary insurance as reasonably required by standard practice in the industry. Upon request, the contractor must provide evidence of insurance coverage to the contracting authority.

II.6.3   The contractor is liable for any loss or damage caused to the contracting authority during or as a consequence of implementation of the FWC, including in the event of subcontracting, but only up to an amount not exceeding three times the total amount of the relevant specific contract. However, if the damage or loss is caused by the gross negligence or wilful misconduct of the contractor or of its personnel or subcontractors, the contractor is liable for the whole amount of the damage or loss.

II.6.4   If a third party brings any action against the contracting authority in connection with the implementation of the FWC, including any action for alleged breach of intellectual property rights, the contractor must assist the contracting authority in the legal proceedings, including by intervening in support of the contracting authority upon request.
If the contracting authority’s liability towards the third party is established and that such liability is caused by the contractor during or as a consequence of the implementation of the FWC, Article II.6.3 applies.

II.6.5   If the contractor is composed of two or more economic operators (i.e. who submitted a joint tender), they are all jointly and severally liable to the contracting authority for the implementation of the FWC.

II.6.6   The contracting authority is not liable for any loss or damage caused to the contractor during or as a consequence of implementation of the FWC, unless the loss or damage was caused by wilful misconduct or gross negligence of the contracting authority.

    1. Conflict of interest and professional conflicting interests

II.7.1   The contractor must take all the necessary measures to prevent any situation of conflict of interest or professional conflicting interest.

II.7.2   The contractor must notify the contracting authority in writing as soon as possible of any situation that could constitute a conflict of interest or a professional conflicting interest during the implementation of the FWC. The contractor must immediately take action to rectify the situation.

The contracting authority may do any of the following:

  1. verify that the contractor’s action is appropriate;
  2. require the contractor to take further action within a specified deadline;
  3. decide not to award a specific contract to the contractor.

II.7.3   The contractor must pass on all the relevant obligations in writing to:

  1. its personnel;
  2.  any natural person with the power to represent it or take decisions on its behalf;
  3. third parties involved in the implementation of the FWC, including subcontractors.

The contractor must also ensure that the persons referred to above are not placed in a situation which could give rise to conflicts of interest.

    1. Confidentiality

II.8.1.  The contracting authority and the contractor must treat with confidentiality any information or documents, in any format, disclosed in writing or orally, relating to the implementation of the FWC and identified in writing as confidential.

II.8.2.  Each party must:

(a)   not use confidential information or documents for any purpose other than to perform its obligations under the FWC or a specific contract without the prior written agreement of the other party;

(b)   ensure the protection of such confidential information or documents with the same level of protection as its own confidential information or documents and in any case with due diligence;

(c)   not disclose, directly or indirectly, confidential information or documents to third parties without the prior written agreement of the other party.

II.8.3   The confidentiality obligations set out in this Article are binding on the contracting authority and the contractor during the implementation of the FWC and for as long as the information or documents remain confidential unless:

(a)   the disclosing party agrees to release the receiving party from the confidentiality obligation earlier;

(b)   the confidential information or documents become public through other means than a breach of the confidentiality obligation;

(c)   the applicable law requires the disclosure of the confidential information or documents.

II.8.4   The contractor must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the implementation of the FWC a commitment that they will comply with this Article. At the request of the contracting authority, the contractor must provide a document providing evidence of this commitment.

    1. Processing of personal data

II.9.1   Processing of personal data by the contracting authority

Any personal data included in or relating to the FWC, including its implementation, shall be processed in accordance with Regulation (EU) 2018/1725. Such data shall be processed solely for the purposes of the implementation, management and monitoring of the FWC by the data controller.

 

The contractor or any other person whose personal data is processed by the data controller in relation to this FWC has specific rights as a data subject under Chapter III (Articles 14-25) of Regulation (EU) 2018/1725, in particular the right to access, rectify or erase their personal data and the right to restrict or, where applicable, the right to object to processing or the right to data portability.

 

Should the contractor or any other person whose personal data is processed in relation to this FWC have any queries concerning the processing of its personal data, it shall address itself to the data controller. They may also address themselves to the Data Protection Officer of the data controller. They have the right to lodge a complaint at any time to the European Data Protection Supervisor.

 

Details concerning the processing of personal data are available in the data protection notice referred to in Article I.9.

II.9.2   Processing of personal data by the contractor

The processing of personal data by the contractor shall meet the requirements of Regulation (EU) 2018/1725 and be processed solely for the purposes set out by the controller.

The contractor shall assist the controller for the fulfilment of the controller’s obligation to respond to requests for exercising rights of person whose personal data is processed in relation to this FWC as laid down in Chapter III (Articles 14-25) of Regulation (EU) 2018/1725. The contractor shall inform without delay the controller about such requests.

The contractor may act only on documented written instructions and under the supervision of the controller, in particular with regard to the purposes of the processing, the categories of data that may be processed, the recipients of the data and the means by which the data subject may exercise its rights.

The contractor shall grant personnel access to the data to the extent strictly necessary for the implementation, management and monitoring of the FWC. The contractor must ensure that personnel authorised to process personal data has committed itself to confidentiality or is under appropriate statutory obligation of confidentiality in accordance with the provisions of Article II.8.

 

The contractor shall adopt appropriate technical and organisational security measures, giving due regard to the risks inherent in the processing and to the nature, scope, context and purposes of processing, in order to ensure, in particular, as appropriate:

 

  1. the pseudonymisation and encryption of personal data;
  2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
  4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;
  5. measures to protect personal data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to personal data transmitted, stored or otherwise processed.

The contractor shall notify relevant personal data breaches to the controller without undue delay and at the latest within 48 hours after the contractor becomes aware of the breach. In such cases, the contractor shall provide the controller with at least the following information:

 

  1. nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
  2. likely consequences of the breach;
  3. measures taken or proposed to be taken to address the breach, including, where appropriate, measures to mitigate its possible adverse effects.

The contractor shall immediately inform the data controller if, in its opinion, an instruction infringes Regulation (EU) 2018/1725, Regulation (EU) 2016/679, or other Union or Member State data protection provisions as referred to in the tender specifications.

The contractor shall assist the controller for the fulfilment of its obligations pursuant to Article 33 to 41 under Regulation (EU) 2018/1725 to:

  1. ensure compliance with its data protection obligations regarding the security of the processing, and  the confidentiality of electronic communications and directories of users;
  2. notify a personal data breach to the European Data Protection Supervisor;
  3. communicate a personal data breach without undue delay to the data subject, where applicable;
  4. carry out data protection impact assessments and prior consultations as necessary.

The contractor shall maintain a record of all data processing operations carried on behalf of the controller, transfers of personal data, security breaches, responses to requests for exercising rights of people whose personal data is processed and requests for access to personal data by third parties.

The contracting authority is subject to Protocol 7 of the Treaty on the Functioning of the European Union on the privileges and immunities of the European Union, particularly as regards the inviolability of archives (including the physical location of data and services as set out in Article I.9.2) and data security, which includes personal data held on behalf of the contracting authority in the premises of the contractor or subcontractor.

The contractor shall notify the contracting authority without delay of any legally binding request for disclosure of the personal data processed on behalf of the contracting authority made by any national public authority, including an authority from a third country. The contractor may not give such access without the prior written authorisation of the contracting authority.

The duration of processing of personal data by the contractor will not exceed the period referred to in Article II.24.2. Upon expiry of this period, the contractor shall, at the choice of the controller, return, without any undue delay in a commonly agreed format, all personal data processed on behalf of the controller and the copies thereof or shall effectively delete all personal data unless Union or national law requires a longer storage of personal data.

For the purpose of Article II.10, if part or all of the processing of personal data is subcontracted to a third party, the contractor shall pass on the obligations referred to in Articles I.9.2 and II.9.2 in writing to those parties, including subcontractors. At the request of the contracting authority, the contractor shall provide a document providing evidence of this commitment.

    1. Subcontracting

II.10.1   The contractor must not subcontract and have the FWC implemented by third parties beyond the third parties already mentioned in its tender without prior written authorisation from the contracting authority.

II.10.2   Even if the contracting authority authorises subcontracting, the contractor remains bound by its contractual obligations and is solely responsible for the implementation of the FWC.

II.10.3   The contractor must ensure that the subcontract does not affect the rights of the contracting authority under this FWC, particularly those under Articles II.8, II.13 and II.24.

II.10.4   The contracting authority may request the contractor to replace a subcontractor found to be in a situation provided for in points (d) and (e) of Article II.18.1.

    1. Amendments

II.11.1   Any amendment to the FWC or a specific contract must be made in writing before all contractual obligations have been fulfilled. A specific contract does not constitute an amendment to the FWC.

II.11.2   Any amendment must not make changes to the FWC or a specific contract that might alter the initial conditions of the procurement procedure or result in unequal treatment of tenderers or contractors.

    1. Assignment

II.12.1   The contractor must not assign any of the rights and obligations arising from the FWC, including claims for payments or factoring, without prior written authorisation from the contracting authority. In such cases, the contractor must provide the contracting authority with the identity of the intended assignee.

II.12.2   Any right or obligation assigned by the contractor without authorisation is not enforceable against the contracting authority.

    1. Intellectual property rights
      1. Ownership of the rights in the results

The Union acquires irrevocably worldwide ownership of the results and of all intellectual property rights under the FWC. The intellectual property rights so acquired include any rights, such as copyright and other intellectual or industrial property rights, to any of the results and to all technological solutions and information created or produced by the contractor or by its subcontractor in implementation of the FWC. The contracting authority may exploit and use the acquired rights as stipulated in this FWC. The Union acquires all the rights from the moment the contracting authority approves the results delivered by the contractor. Such delivery and approval are deemed to constitute an effective assignment of rights from the contractor to the Union.

The payment of the price includes any fees payable to the contractor about the acquisition of ownership of rights by the Union including for all forms of exploitation and of use of the results.

      1. Licensing rights on pre-existing materials

Unless provided otherwise in the special conditions, the Union does not acquire ownership of pre-existing rights under this FWC.

The contractor licenses the pre-existing rights on a royalty-free, non-exclusive and irrevocable basis to the Union, which may use the pre-existing materials for all the modes of exploitation set out in this FWC or in specific contracts. All pre-existing rights are licensed to the Union from the moment the results are delivered and approved by the contracting authority.

The licensing of pre-existing rights to the Union under this FWC covers all territories worldwide and is valid for the duration of intellectual property rights protection.

The payment of the price as set out in the specific contracts is deemed to also include any fees payable to the contractor in relation to the licensing of pre-existing rights to the Union, including for all forms of exploitation and of use of the results.

Where implementation of the FWC requires that the contractor uses pre-existing materials belonging to the contracting authority, the contracting authority may request that the contractor signs an adequate licence agreement. Such use by the contractor will not entail any transfer of rights to the contractor and is limited to the needs of this FWC.

      1. Exclusive rights

The Union acquires the following exclusive rights:

  1. reproduction: the right to authorise or prohibit direct or indirect, temporary or permanent reproduction of the results by any means (mechanical, digital or other) and in any form, in whole or in part;
  2. communication to the public: the exclusive right to authorise or prohibit any display, performance or communication to the public, by wire or wireless means, including the making available to the public of the results in such a way that members of the public may access them from a place and at a time individually chosen by them; this right also includes the communication and broadcasting by cable or by satellite;
  3. distribution: the exclusive right to authorise or prohibit any form of distribution of results or copies of the results to the public, by sale or otherwise;
  4. rental: the exclusive right to authorise or prohibit rental or lending of the results or of copies of the results;
  5. adaptation: the exclusive right to authorise or prohibit any modification of the results;
  6. translation: the exclusive right to authorise or prohibit any translation, adaptation, arrangement, creation of derivative works based on the results, and any other alteration of the results, subject to the respect of moral rights of authors, where applicable;
  7. where the results are or include a database: the exclusive right to authorise or prohibit the extraction of all or a substantial part of the contents of the database to another medium by any means or in any form; and the exclusive right to authorise or prohibit the re-utilization of all or a substantial part of the contents of the database by the distribution of copies, by renting, by on-line or other forms of transmission;
  8. where the results are or include a patentable subject-matter: the right to register them as a patent and to further exploit such patent to the fullest extent;
  1. where the results are or include logos or subject-matter which could be registered as a trademark: the right to register such logo or subject-matter as a trademark and to further exploit and use it;
  1. where the results are or include know-how: the right to use such know-how as is necessary to make use of the results to the full extent provided for by this FWC, and the right to make it available to contractors or subcontractors acting on behalf of the contracting authority, subject to their signing of adequate confidentiality undertakings where necessary;
  1. where the results are documents:
            1. the right to authorise the reuse of the documents in conformity with the Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU), to the extent it is applicable and the documents fall within its scope and are not excluded by any of its provisions; for the sake of this provision, ‘reuse’ and ‘document’ have the meaning given to it by this Decision;
            2. the right to store and archive the results in line with the document management rules applicable to the contracting authority, including digitisation or converting the format for preservation or new use purposes;
  1. where the results are or incorporate software, including source code, object code and, where relevant, documentation, preparatory materials and manuals, in addition to the other rights mentioned in this Article:
            1. end-user rights, for all uses by the Union or by subcontractors acting on behalf of the Union which result from this FWC and from the intention of the parties;
            2. the rights to decompile or disassemble the software;
  2. to the extent that the contractor may invoke moral rights, the right for the contracting authority, except where otherwise provided in this FWC, to publish the results with or without mentioning the creator(s)’ name(s), and the right to decide when and whether the results may be disclosed and published.

The contractor warrants that the exclusive rights and the modes of exploitation may be exercised by the Union on all parts of the results, be they created by the contractor or consisting of pre-existing materials.

Where pre-existing materials are inserted in the results, the contracting authority may accept reasonable restrictions impacting on the above list, provided that the said materials are easily identifiable and separable from the rest, that they do not correspond to substantial elements of the results, and that, should the need arise, satisfactory replacement solutions exist, at no additional costs to the contracting authority. In such case, the contractor will have to clearly inform the contracting authority before making such choice and the contracting authority has the right to refuse it.

      1. Identification of pre-existing rights

When delivering the results, the contractor must warrant that, for any use that the contracting authority may envisage within the limits set in this FWC, the results and the pre-existing material incorporated in the results are free of claims from creators or from any third parties and all the necessary pre-existing rights have been obtained or licensed.

To that effect, the contractor must establish a list of all pre-existing rights to the results of this FWC or parts thereof, including identification of the rights’ owners. If there are no pre-existing rights to the results, the contractor must provide a declaration to that effect. The contractor must provide this list or declaration to the contracting authority together with the invoice for payment of the balance at the latest.

      1.             Evidence of granting of pre-existing rights

Upon request by the contracting authority, the contractor must provide evidence that it has the ownership or the right to use all the listed pre-existing rights, except for the rights owned or licensed by the Union. The contracting authority may request this evidence even after the end of this FWC.

This evidence may refer, for example, to rights to: parts of other documents, images, graphs, fonts, tables, data, software, technical inventions, know-how, IT development tools, routines, subroutines or other programs (‘background technology’), concepts, designs, installations or pieces of art, data, source or background materials or any other parts of external origin.

This evidence must include, as appropriate:

  1. the name and version number of a software product;
  2. the full identification of the work and its author, developer, creator, translator, data entry person, graphic designer, publisher, editor, photographer, producer;
  3. a copy of the licence to use the product or of the agreement granting the relevant rights to the contractor or a reference to this licence;
  4. a copy of the agreement or extract from the employment contract granting the relevant rights to the contractor where parts of the results were created by its personnel;
  5. the text of the disclaimer notice if any.

Provision of evidence does not release the contractor from its responsibilities if it is found that it does not hold the necessary rights, regardless of when and by whom this fact is revealed.

The contractor also warrants that it possesses the relevant rights or powers to execute the transfer and that it has paid or has verified payment of all due fees including fees due to collecting societies, related to the final results.

      1. Quotation of works in the result

In the result, the contractor must clearly point out all quotations of existing works. The complete reference should include as appropriate, the following: name of the author, title of the work, date and place of publication, date of creation, address of publication on the internet, number, volume and other information that allows the origin to be easily identified.

      1. Moral rights of creators

By delivering the results, the contractor warrants that the creators will not object to the following on the basis of their moral rights under copyright:

  1. that their names be mentioned or not mentioned when the results are presented to the public;
  2. that the results be divulged or not after they have been delivered in their final version to the contracting authority;
  3. that the results be adapted, provided that this is done in a manner which is not prejudicial to the creator’s honour or reputation.

If moral rights on parts of the results protected by copyright may exist, the contractor must obtain the consent of creators regarding the granting or waiver of the relevant moral rights in accordance with the applicable legal provisions and be ready to provide documentary evidence upon request.

      1. Image rights and sound recordings

If natural persons appear in a result or their voice or any other private element is recorded in a recognisable manner, the contractor must obtain a statement by these persons (or, in the case of minors, by the persons exercising parental authority) giving their permission for the described use of their image, voice or private element and, on request, submit a copy of the permission to the contracting authority. The contractor must take the necessary measures to obtain such consent in accordance with the applicable legal provisions.

      1. Copyright notice for pre-existing rights

When the contractor retains pre-existing rights on parts of the results, reference must be inserted to that effect when the result is used as set out in Article I.10.1, with the following disclaimer: ‘© — year — European Union. All rights reserved. Certain parts are licensed under conditions to the EU’, or with any other equivalent disclaimer as the contracting authority may consider best appropriate, or as the parties may agree on a case-by-case basis. This does not apply where inserting such reference would be impossible, notably for practical reasons.

      1. Visibility of Union funding and disclaimer

When making use of the results, the contractor must declare that they have been produced under a contract with the Union and that the opinions expressed are those of the contractor only and do not represent the contracting authority’s official position. The contracting authority may waive this obligation in writing or provide the text of the disclaimer.

    1. Force majeure

II.14.1   If a party is affected by force majeure, it must immediately notify the other party, stating the nature of the circumstances, their likely duration and foreseeable effects.

II.14.2   A party is not liable for any delay or failure to perform its obligations under the FWC if that delay or failure is a result of force majeure. If the contractor is unable to fulfil its contractual obligations owing to force majeure, it has the right to remuneration only for the services actually provided.

II.14.3   The parties must take all necessary measures to limit any damage due to force majeure.

    • Liquidated damages
      1.  Delay in delivery

If the contractor fails to perform its contractual obligations within the applicable time limits set out in this FWC, the contracting authority may claim liquidated damages for each day of delay using the following formula:

0.3 x (V/d)

where:

V is the price of the relevant purchase or deliverable or result;

d is the duration specified in the relevant specific contract for delivery of the relevant purchase or deliverable or result or, failing that, the period between the date specified in Article I.4.2 and the date of delivery or performance specified in the relevant specific contract, expressed in days.

Liquidated damages may be imposed together with a reduction in price under the conditions laid down in Article II.16.

      1. Procedure

The contracting authority must formally notify the contractor of its intention to apply liquidated damages and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to apply liquidated damages; or

(b) of its final decision to apply liquidated damages and the corresponding amount.

      1. Nature of liquidated damages

The parties expressly acknowledge and agree that any amount payable under this Article is not a penalty and represents a reasonable estimate of fair compensation for the damage incurred due to failure to provide the services within the applicable time limits set out in this FWC.

      1. Claims and liability

Any claim for liquidated damages does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

    1. Reduction in price
      1. Quality standards

If the contractor fails to provide the service in accordance with the FWC or a specific contract (‘unperformed obligations’) or if it fails to provide the service in accordance with the expected quality levels specified in the tender specifications (‘low quality delivery’), the contracting authority may reduce or recover payments proportionally to the seriousness of the unperformed obligations or low quality delivery. This includes in particular cases where the contracting authority cannot approve a result, report or deliverable as defined in Article I.6 after the contractor has submitted the required additional information, correction or new version.

A reduction in price may be imposed together with liquidated damages under the conditions of Article II.15.

      1. Procedure

The contracting authority must formally notify the contractor of its intention to reduce payment and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to reduce payment; or

(b) of its final decision to reduce payment and the corresponding amount,.

      1. Claims and liability

Any reduction in price does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

    1. Suspension of the implementation of the FWC
      1. Suspension by the contractor

If the contractor is affected by force majeure, it may suspend the provision of the services under a specific contract.

The contractor must immediately notify the contracting authority of the suspension. The notification must include a description of the force majeure and state when the contractor expects to resume the provision of services.

The contractor must notify the contracting authority as soon as it is able to resume performance of the specific contract, unless the contracting authority has already terminated the FWC or the specific contract.

      1. Suspension by the contracting authority

The contracting authority may suspend the implementation of the FWC or performance of a specific contract or any part of it:

(a)   if the procedure for awarding the FWC or a specific contract or the implementation of the FWC proves to have been subject to substantial errors, irregularities or fraud;

(b)   in order to verify whether the presumed substantial errors, irregularities or fraud actually occurred.

The contracting authority must formally notify the contractor of the suspension. Suspension takes effect on the date of formal notification, or at a later date if the formal notification so provides.

The contracting authority must notify the contractor as soon as possible whether:

  1. it is lifting the suspension; or
  2. it intends to terminate the FWC or a specific contract under Article II.18.1(f) or (j).

The contractor is not entitled to compensation for suspension of any part of the FWC or a specific contract.

    1. Termination of the FWC
      1. Grounds for termination by the contracting authority

The contracting authority may terminate the FWC or a specific contract in the following circumstances:

  • if provision of the services under a pending specific contract has not actually started within 15 days of the scheduled date and the contracting authority considers the new date proposed, if any, unacceptable, taking into account Article II.11.2;
  • if the contractor is unable, through its own fault, to obtain any permit or licence required for implementation of the FWC;
  • if the contractor does not implement the FWC or perform the specific contract in accordance with the tender specifications or request for service or is in breach of another substantial contractual obligation or repeatedly refuses to sign specific contracts. Termination of three or more specific contracts in these circumstances also constitutes grounds for termination of the FWC;
  • if the contractor or any person that assumes unlimited liability for the debts of the contractor is in one of the situations provided for in points (a) and (b) of Article 136(1) of the Financial Regulation[12];
  • if the contractor or any related person is subject to any of the situations provided for in points (c) to (f) of Article 136(1) or to Article 136(2) of the Financial Regulation.
  • if the procedure for awarding the FWC or the implementation of the FWC prove to have been subject to substantial errors, irregularities or fraud;
  • if the contractor does not comply with applicable obligations under environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU;
  1. if the contractor is in a situation that could constitute a conflict of interest or a professional conflicting interest as referred to in Article II.7;
  1. if a change to the contractor’s legal, financial, technical, organisational or ownership situation is likely to substantially affect the implementation of the FWC or substantially modify the conditions under which the FWC was initially awarded;
  1. in the event of force majeure, where either resuming implementation is impossible or the necessary ensuing amendments to the FWC or a specific contract would mean that the tender specifications are no longer fulfilled or result in unequal treatment of tenderers or contractors;
  1. if the needs of the contracting authority change and it no longer requires new services under the FWC; in such cases ongoing specific contracts remain unaffected;
  2. if the termination of the FWC with one or more of the contractors means that the multiple FWC with reopening of competition no longer has the minimum required level of competition;
  3. if the contractor is in breach of the data protection obligations resulting from Article II.9.2;
  4. if the contractor does not comply with the applicable data protection obligations resulting from Regulation (EU) 2016/679.
      1. Grounds for termination by the contractor

The contractor may terminate the FWC or a specific contract if:

  1. it has evidence that the contracting authority has committed substantial errors, irregularities or fraud in the procedure for awarding the FWC or the implementation of the FWC;
  2. the contracting authority fails to comply with its obligations, in particular the obligation to provide the information needed for the contractor to implement the FWC or to perform a specific contract as provided for in the tender specifications.
      1. Procedure for termination

A party must formally notify the other party of its intention to terminate the FWC or a specific contract and the grounds for termination.

The other party has 30 days following the date of receipt to submit observations, including the measures it has taken to continue fulfilling its contractual obligations. Failing that, the decision to terminate becomes enforceable the day after the time limit for submitting observations has elapsed.

If the other party submits observations, the party intending to terminate must formally notify it either of the withdrawal of its intention to terminate or of its final decision to terminate.

In the cases referred to in points (a) to (d), (g) to (i), (k) and (l) of Article II.18.1 and in Article II.18.2, the date on which the termination takes effect must be specified in the formal notification.

In the cases referred to in points (e), (f) and (j) of Article II.18.1, the termination takes effect on the day following the date on which the contractor receives notification of termination.

In addition, at the request of the contracting authority and regardless of the grounds for termination, the contractor must provide all necessary assistance, including information, documents and files, to allow the contracting authority to complete, continue or transfer the services to a new contractor or internally, without interruption or adverse effect on the quality or continuity of the services. The parties may agree to draw up a transition plan detailing the contractor’s assistance unless such plan is already detailed in other contractual documents or in the tender specifications. The contractor must provide such assistance at no additional cost, except if it can demonstrate that it requires substantial additional resources or means, in which case it must provide an estimate of the costs involved and the parties will negotiate an arrangement in good faith.

      1. Effects of termination

The contractor is liable for damage incurred by the contracting authority as a result of the termination of the FWC or a specific contract including the cost of appointing another contractor to provide or complete the services, unless the damage was caused by the situation specified in Article II.18.1(j), (k) or (l) or in Article II.18.2. The contracting authority may claim compensation for such damage.

The contractor is not entitled to compensation for any loss resulting from the termination of the FWC or a specific contract, including loss of anticipated profits, unless the loss was caused by the situation specified in Article II.18.2.

The contractor must take all appropriate measures to minimise costs, prevent damage and cancel or reduce its commitments.

Within 60 days of the date of termination, the contractor must submit any report, deliverable or result and any invoice required for services that were provided before the date of termination.

In the case of joint tenders, the contracting authority may terminate the FWC or a specific contract with each member of the group separately  on the basis of points (d), (e) or (g) of Article II.18.1, under the conditions set out in Article II.11.2

    1. Invoices, value added tax and e-invoicing
      1. Invoices and value added tax

Invoices must contain the contractor’s (or leader’s in the case of a joint tender) identification data, the amount, the currency and the date, as well as the FWC reference and reference to the specific contract.

Invoices must indicate the place of taxation of the contractor (or leader in the case of a joint tender) for value added tax (VAT) purposes and must specify separately amounts not including VAT and amounts including VAT.

The contracting authority is exempt from all taxes and duties, including VAT, in accordance with Articles 3 and 4 of the Protocol on the privileges and immunities of the European Union.

Unless otherwise stated in the tender specifications, in the specific contract or in the order form, the contracting authority is exempt from all taxes, duties and other charges, including VAT, in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961 and the particular Headquarters' agreements concluded between the host state and the European Union institution, which grant an exemption equivalent to that stated in the Vienna Convention.

The contractor (or leader in the case of a joint tender) must complete the necessary formalities with the relevant authorities to ensure that the supplies and services required for implementation of the FWC are exempt from taxes and duties, including VAT.

      1. E-invoicing

If provided for in the special conditions, the contractor (or leader in the case of a joint tender) submits invoices in electronic format if the conditions regarding electronic signature specified by Directive 2006/112/EC on VAT are fulfilled, i.e. using a qualified electronic signature or through electronic data interchange.

Reception of invoices by standard format (pdf) or email is not accepted.

    1. Price revision

Price revision is not applicable to this FWC.

                      Ir

    1. Payments and guarantees
      1. Date of payment

Payments are deemed to be effected on the date when they are debited to the contracting authority’s account.

      1. Currency

Payments are made in euros or in the currency provided for in Article I.7.

      1. Costs of transfer

The costs of the transfer are borne as follows:

  1. the contracting authority bears the costs of dispatch charged by its bank;
  2. the contractor bears the costs of receipt charged by its bank;
  3. the party causing repetition of the transfer bears the costs for repeated transfer.
      1. Pre-financing, performance and money retention guarantees

Pre-financing, performance and money retention guarantees are not applicable to this FWC.

      1. Interim payments and payment of the balance

Interim payments and payment of the balance are not applicable to this FWC.

      1. Suspension of the time allowed for payment

The contracting authority may suspend the payment periods specified in Article I.6 at any time by notifying the contractor (or leader in the case of a joint tender) that its invoice cannot be processed. The reasons the contracting authority may cite for not being able to process an invoice are:

  1. because it does not comply with the FWC;
  2. because the contractor has not produced the appropriate documents or deliverables; or
  3. because the contracting authority has observations on the documents or deliverables submitted with the invoice.

The contracting authority must notify the contractor (or leader in the case of joint tender) as soon as possible of any such suspension, giving the reasons for it.

Suspension takes effect on the date the contracting authority sends the notification. The remaining payment period resumes from the date on which the requested information or revised documents are received or the necessary further verification, including on-the-spot checks, is carried out. Where the suspension period exceeds two months, the contractor (or leader in the case of a joint tender) may request the contracting authority to justify the continued suspension.

Where the payment periods have been suspended following rejection of a document referred to in the first paragraph of this Article and the new document produced is also rejected, the contracting authority reserves the right to terminate the specific contract in accordance with Article II.18.1(c).

      1. Interest on late payment

Suspension of the payment period as provided for in Article II.21.7 is not considered as giving rise to late payment.

Interest on late payment covers the period running from the day following the due date for payment up to and including the date of payment as defined in Article II.21.1.

However, when the calculated interest is EUR 200 or less, it must be paid to the contractor (or leader in the case of a joint tender) only if it requests it within two months of receiving late payment.

    1. Reimbursements

Reimbursement of expenses is not applicable to this FWC.

    1. Recovery

II.23.1   If an amount is to be recovered under the terms of the FWC, the contractor must repay the contracting authority the amount in question.

      1. Recovery procedure

Before recovery, the contracting authority must formally notify the contractor of its intention to recover the amount it claims, specifying the amount due and the reasons for recovery and inviting the contractor to make any observations within 30 days of receipt.

If no observations have been submitted or if, despite the observations submitted, the contracting authority decides to pursue the recovery procedure, it must confirm recovery by formally notifying a debit note to the contractor, specifying the date of payment. The contractor must pay in accordance with the provisions specified in the debit note.

If the contractor does not pay by the due date, the contracting authority may, after informing the contractor in writing, recover the amounts due:

  1. by offsetting them against any amounts owed to the contractor by the Union
  2. by calling in a financial guarantee if the contractor has submitted one to the contracting authority;
  3. by taking legal action.
      1. Interest on late payment

If the contractor does not honour the obligation to pay the amount due by the date set by the contracting authority in the debit note, the amount due bears interest at the rate indicated in Article II.21.8. Interest on late payments will cover the period starting on the day after the due date for payment and ending on the date when the contracting authority receives the full amount owed.

Any partial payment is first entered against charges and interest on late payment and then against the principal amount.

      1. Recovery rules in the case of joint tender

If the contract is signed by a group (joint tender), the group is jointly and severally liable under the conditions set out in Article II.6 (liability). The contracting authority first claims the full amount to the leader of the group.

If the leader does not pay by the due date and if the amount cannot be offset in accordance with Article II.23.2 (a), the contracting authority may claim the full amount to any other member of the group by notifying the debit note already sent to the leader under Article II.23.2.

    1. Checks and audits

Checks and audits are not applicable to this FWC.

 

 

III.    MODEL ORDER FORM

   

 

 

FRAMEWORK CONTRACT

 

MODEL ORDER FORM

 

Delegation of the European Union to the Republic of Botswana

 

 

Order number: 

(Name and address of contractor)

  

 

 

Currency of payment:   BWP

 

 

Tel.:

 

 

Tender (date and reference):

 

 

E-mail: Delegation-Botswana@

eeas.europa.eu

 

 

 

 

 

This order is governed by Framework Contract No EEAS-XXX- DELBWA-SER-FWC-2020   in force from __________ to ___________

  

LISTING OF THE SUPPLIES / SERVICES

UNIT

QUANTITY

PRICE in BWP

 

and code

 

 

UNIT PRICE

TOTAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Pursuant to the provisions of Headquarters Agreement applicable to the European Union Delegation or the Vienna Convention of 18 April 1961 on diplomatic relations][other agreement, the EU is exempt from all taxes and dues, including value added tax, on payments due in respect of this contract.

 

 

 

 

 

[Packaging]

 

 

 

 

[Insurance]

 

 

 

 

[Transport]

 

 

 

 

[Assembly]

 

 

 

 

VAT

 

 

 

 

TOTAL:

 

 

 

 

Place of delivery or performance and/or Incoterm:

Contractor’s signature

 

Final date of delivery or performance:

 

 

 

Payment provisions:

 

 

Name:

 

 

 

 

 

 

Position:

 

 

[Guarantee:]

 

 

 

Date:

 

 

 

 

Date of issue:

 

 

 

 

 

 

 

Signature [name and position]:

 

 

 

   

The invoice will be paid only if the contractor has returned the signed order form.

 

 

 

TENDER SPECIFICATIONS

No EEAS-DELBWA-04/01/2020-SER-FWC PAINTING SERVICES

Services Framework Contract

NEGOTIATED PROCEDURE

  1. Introduction

The contracting authority is the European Union (hereinafter referred to as "contracting authority"), represented by the Head the Delegation of the European Union in The Republic of Botswana or its duly authorized representative.

These tender specifications and the tender submitted by the awardee of the contract will be annexed to the contract and therefore be binding on the contracting parties during the implementation of the contract.

In addition, the instructions as stipulated in the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" (available at the following link: https://eeas.europa.eu/headquarters/headquarters-homepage/8989_en are applicable to this tender unless otherwise mentioned in these tender specifications.

  1. subject of the contract
  • The contractor must provide the human and material resources necessary to provide the service in the non‑exhaustive list below:
  • proper preparation of all surfaces to be painted;
  • complete painting of external walls of each house as per schedule;
  • complete painting of boundary wall as per schedule
  • cracks and holes in the wall and surfaces will be spackled and sanded smooth
  •  

The place of performance is mainly staff houses all located within an approximate 10km radius of the Delegation offices.

  1. joint tender

The provisions are detailed in the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" as mentioned under point 1 above.

  1. eligibility of economic operators
    1. Access to public procurement

In addition to the provisions at point 4.1 of the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts", this tender is also exceptionally open on equal terms to all natural and legal persons in The Republic of Botswana.

    1. Non-exclusion and selection of economic operators

Tenderers shall provide a declaration on exclusion and selection criteria attached to these tender specifications dully filled in, signed and dated by the legally authorised representative.

The declaration on exclusion and selection criteria shall be provided by each member of the group in case of joint tenders.

All the tenderers shall provide with their tenders the documents mentioned as supporting documents on selection criteria in the declaration on their honour and in the "Tender form" annexed to these tender specifications.

The tenderers shall meet the selection criteria listed here below.

      1. Legal and regulatory capacity criteria
  1. Authorisation to provide the services at the place of performance of the contract.

Minimum capacity level required:

The tenderer shall be authorised to provide the services being subject to this contract at the place of performance of this contract. The relevant certificate must be valid on the date of the deadline for the submission of requests to participate.

Supporting document(s)/evidence requested:

  1. Evidence on enrolment in a relevant professional or trade register, except for international organisations.
  •  
  1. Evidence of professional and liability risk indemnity insurance valid for the execution of services foreseen in the present contract notice in The Republic of Botswana.

Before the signature of the contract, the validity of the certificate may be verified again.

      1. Economic and financial capacity criteria
  1. Turnover

Minimum capacity level required:

  1. The average annual turnover for the last two financial years for which accounts have been closed.

Supporting document(s)/evidence requested:

Profit and loss accounts (Income statement) for the last two financial years for which accounts have been closed.

 

      1. Technical and professional capacity criteria
  1. Previous contracts

Minimum capacity level(s) required:

1. At least three contracts in the fields related to the painting services indicated in point 2 during the last three calendar years.

Supporting document(s)/evidence requested:

In order to meet the minimum capacity level(s) required mentioned above, the tenderer must present a list of references and/or client's reference letters relevant to the painting service contracts performed during the past three calendar years.

The criterion is applied to:

  1. Evaluation of tenders on the basis of the award criteria

The technically compliant tenders are evaluated in order to award the contract to the tender offering the lowest price. In other words, the contract is awarded to the tender that satisfies the requirements set in the technical specifications and offers the lowest price.

    1. Technical compliance

The technical compliance will be evaluated based on the "Table of compliance with the requirements in the procurement documents" (refer to the "Tender form"). The tenderers shall return the table duly completed, dated and signed.

    1. Financial tender

Only the financial tenders submitted by those tenderers who have submitted technically compliant tenders as indicated above will be considered for the award.

The prices for the tender must be tendered:

  • in BWP;
  • free of all duties, taxes and other charges, including VAT, as the European Union is exempt from such charges under the Vienna Convention;
  • all inclusive. This means that, unless otherwise mentioned in these tender specifications, prices tendered for shall include all the costs to be incurred by the tenderers to fully implement the contract;
  • using the unit price schedule (Annex A).
  1. Content of the tender

The tenderer shall duly complete and sign the "Tender form" annexed to these tender specifications and submit all the documents requested in it.

The contracting authority reserves the right to decide whether to request or not any missing documents not provided by the tenderers.

  1. Annexes

Annex I: Technical specifications

Annex II:            Tender form

  • Section 1:            Presentation of the tenderer
  • Section 2:            Legal entity form and Financial Identification Form
  • Section 3:            Declaration on honour on exclusion and selection criteria
  • Section 4:            Evidence on selection criteria
  • Section 5 :          Technical tender – Table of compliance with the requirements in the procurement documents
  • Section 6 :           Financial tender

 Annexes Annex I Technical specifications

The contracting authority intends to procure the provision of painting services to be rendered to the EU Delegation.  All the requirements in the following technical specifications are considered to be minimum requirements and therefore not subject to the negotiation, if any, unless specified for any particular aspects.

  1. Scope of Work

The following services are required:

  • proper preparation of all surfaces to be painted;
  • complete painting of external walls of each house as per schedule;
  • complete painting of boundary wall as per schedule
  • cracks and holes in the wall and surfaces will be spackled and sanded smooth.
  1. Equipment and materials

Equipment and material will be supplied by the contractor.

  • All equipment and material must comply with the standards laid down in the standards of the The Republic of Botswana.
  • Wall paint shall be of high, durable quality and of a well-known brand.

 

  1. Specific Requirements

 

  1. General Workmanship

 

  • All surfaces to be painted shall be dry and cleaned, free of all dirt, grit, grease, mould, mildew or any other foreign substance.
  • A primer or undercoat will be used before painting if and where required.
  • All work shall be done in a neat and clean manner.
  • Each coat of paint shall be evenly worked out and allowed to dry according to the manufacturer's recommendations before subsequent coats are applied.
  • The finishing coat or coats of paint shall be off white in colour. The contractor shall not change the colour of the paint unless authorised to do so by the Contracting Authority in writing.
  • The finished work shall be free from runs, sags, defective brushing or stippling and clogging of lines and angles of the trim.
  • It shall be understood that the number of coats of material recommended by the manufacturer specifies a minimum. Taking into consideration that even material of high quality, mere applications of the stated number of coats will not assure acceptance unless the workmanship and quality of work is approved by the Contracting Authority.
  • The thinning of good, high quality material for additional coverage and the use of poor materials and the adulteration with inferior substitute materials is not permitted.  A full bodied finish of the paint surface is required under this contract regardless of the number of coats necessary to get the accomplished result.
  • All surfaces shall be left clean at completion of the job.
  • Drop cloths shall be used and kept clean at all times.
  • Windows and floor shall be carefully handled and kept free of paint and spatters.
  1. Conduct of Operations
  • The Contractor shall conduct the requested works in a cooperative manner with the Contracting Authority and shall interfere as little as possible with the normal operations and functioning of the Residence and the tenants of the properties.
  • Most of the living quarters will be vacant at the time the painting is done.  Whether these spaces are occupied or not, the work of the Contractor is to be pursued diligently to the end and each area is to be finished at the earliest possible moment after standing. Work shall be done in areas as directed by the Contracting Authority so that any inconvenience is kept to a minimum.
  1. Protection
  • The Contractor shall protect floors and other finished surfaces from damage during the execution of the work.
  • The Contractor shall be responsible for any damage to other work. Any materials which in the opinion of the Contracting Authority have become damaged to such an extent that they cannot be restored to their original condition shall be replaced at the Contractor's expense.
  • Work not to be finished and/or under this contract shall be protected against paint spatter, stain or soiling.
  1. Touch up

At completion of the works specified, all paintwork shall be touched up and restored where damaged, defaced or defective and the entire work left free from blemishes.

  1. Cleaning

The Contractor shall clean all paint spots, oil and stains from floors, woodwork, glass, hardware, tile, metal work and all similar items and leave the site clean upon completion.

  1. Staff

Staff must have

  • no criminal record;
  • a polite, professional and punctual behaviour;
  • a very good sense of organisation, planning and time-keeping.
  1. Warranty

The tenderer must indicate the warrantee on the works.

 Annex II Tender form

Section 1

Presentation of the tenderer

EEAS-DELBWA………-SER-FWC 2020 PAINTING SERVICES

 

Official name of legal entity

State of the headquarters (legal persons) or of the domicile (natural persons) of the legal entity

Main registration number

Leader

 

 

 

Member

 

 

 

[insert as many rows as necessary]

 

 

 

 

CONTACT PERSON FOR THIS TENDER

Name

 

Position

 

Address

 

e-mail

 

 

 

Name(s) and signature(s) of the legal representative(s) of the tenderer*:

*in case of joint tender, the form shall be signed by the legal representative of each member of the group as indicated above under "Tenderer".

 

Stamp, date and place

Section 2

Legal entity form

 

Please submit a signed Legal Entity Form with its supporting evidence. The form is attached and available at

http://ec.europa.eu/budget/contracts_grants/info_contracts/legal_entities/legal_entities_en.cfm .

When the tenderer is a legal person, a legible copy of the notice of appointment of the persons authorised to represent the tenderer in dealings with third parties and in legal proceedings, or a copy of the publication of such appointment if the legislation which applies to the legal entity concerned requires such publication. Any delegation of this authorisation to another representative not indicated in the official appointment must be evidenced. When the tenderer is a natural person, a proof of registration on a professional or trade register or any other official document showing the registration number. The legally constituted consortium must present its own Legal Entity Form which is different from the Legal Entity Form of each individual member of the group;

 

Financial identification form

Please submit a signed financial identification form and its supporting evidence. The form is attached and available at

http://ec.europa.eu/budget/contracts_grants/info_contracts/financial_id/financial_id_en.cfm, (bank account file - BAF). Even in case of joint tenders, one form must be submitted;

 

 

 

Section 3

Declaration on honour on exclusion criteria and selection criteria

The undersigned ……………………….... [name of the signatory of this form], representing:

(only if the candidate is a natural person) himself or herself

(only if the candidate is a legal person) the following legal person:

 

ID or passport number:

 

(‘the person’)

Full official name:

Official legal form:

Statutory registration number:

Full official address:

VAT registration number:

 

(‘the person’)

 

The person is not required to submit the declaration on exclusion criteria if the same declaration has already been submitted for the purposes of another award procedure of the same contracting authority, provided the situation has not changed, and that the time that has elapsed since the issuing date of the declaration does not exceed one year.

In this case, the signatory declares that the person has already provided the same declaration on exclusion criteria for a previous procedure and confirms that there has been no change in its situation:

Date of the declaration

Full reference to previous procedure

 

 

 

I – Situation of exclusion concerning the person

  1.  declares that the above-mentioned person is in one of the following situations:

YES

NO

  1. it is bankrupt, subject to insolvency or winding-up procedures, its assets are being administered by a liquidator or by a court, it is in an arrangement with creditors, its business activities are suspended or it is in any analogous situation arising from a similar procedure provided for under Union or national law;

 

 

  1. it has been established by a final judgement or a final administrative decision that the person is in breach of its obligations relating to the payment of taxes or social security contributions in accordance with the applicable law;

 

  1. it has been established by a final judgement or a final administrative decision that the person is guilty of grave professional misconduct by having violated applicable laws or regulations or ethical standards of the profession to which the person belongs, or by having engaged in any wrongful conduct which has an impact on its professional credibity where such conduct denotes wrongful intent or gross negligence, including, in particular, any of the following:

 

(i) fraudulently or negligently misrepresenting information required for the verification of the absence of grounds for exclusion or the fulfilment of eligibility selection criteria or in the performance of a contract or an agreement;

 

 

(ii) entering into agreement with other persons with the aim of distorting competition;

 

 

(iii) violating intellectual property rights;

 

 

(iv) attempting to influence the decision-making process of the contracting authority during the award procedure;

 

 

(v) attempting to obtain confidential information that may confer upon it undue advantages in the award procedure;

 

 

  1. it has been established by a final judgement that the person is guilty of the following:

 

(i) fraud, within the meaning of Article 3 of Directive (EU) 2017/1371 and Article 1 of the Convention on the protection of the European Communities' financial interests, drawn up by the Council Act of 26 July 1995;

 

 

(ii) corruption, as defined in Article 4(2) of Directive (EU) 2017/1371 or active corruption within the meaning of Article 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, drawn up by the Council Act of 26 May 1997, or conduct referred to in Article 2(1) of Council Framework Decision 2003/568/JHA, as well as corruption as defined in the other applicable laws;

 

 

(iii) conduct related to a criminal organisation, as referred to in Article 2 of Council Framework Decision 2008/841/JHA;

 

 

(iv) money laundering or terrorist financing, within the meaning of Article 1(3), (4) and (5) of Directive (EU) 2015/849 of the European Parliament and of the Council;

 

 

(v) terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Council Framework Decision 2002/475/JHA, respectively, or inciting, aiding, abetting or attempting to commit such offences, as referred to in Article 4 of that Decision;

 

 

(vi) child labour or other offences concerning trafficking in human beings as referred to in Article 2 of Directive 2011/36/EU of the European Parliament and of the Council;

 

 

  1. it has shown significant deficiencies in complying with the main obligations in the performance of a contract or an agreement financed by the Union’s budget, which has led to its early termination or to the application of liquidated damages or other contractual penalties, or which has been discovered following checks, audits or investigations by a contracting authority, the European Anti-Fraud Office (OLAF) or the Court of Auditors;

 

 

  1. it has been established by a final judgment or final administrative decision that the person has committed an irregularity within the meaning of Article 1(2) of Council Regulation (EC, Euratom) No 2988/95;

 

 

  1. it has been established by a final judgment or final administrative decision that the person has created an entity under a different jurisdiction with the intent to circumvent fiscal, social or any other legal obligations in the jurisdiction of its registered office, central administration or principal place of business.

 

 

  1. (only for legal persons) it has been established by a final judgment or final administrative decision that the person has been created with the intent provided for in point (g).

 

 

  1. for the situations referred to in points (c) to (h) above the person is subject to:
  1. facts established in the context of audits or investigations carried out by the European Public Prosecutor's Office after its establishment, the Court of Auditors, the European Anti-Fraud Office (OLAF) or the internal auditor, or any other check, audit or control performed under the responsibility of an authorising officer of an EU institution, of a European office or of an EU agency or body;
  2. non-final judgements or non-final administrative decisions which may include disciplinary measures taken by the competent supervisory body responsible for the verification of the application of standards of professional ethics;
  3.  facts referred to in decisions of entities or persons being entrusted with EU budget implementation tasks;
  4. information transmitted by Member States implementing Union funds;
  5. decisions of the Commission relating to the infringement of Union competition law or of a national competent authority relating to the infringement of Union or national competition law; or
  6. decisions of exclusion by an authorising officer of an EU institution, of a European office or of an EU agency or body.

 

 

II – SITUATIONS OF EXCLUSION CONCERNING NATURAL OR LEGAL PERSONS WITH POWER OF REPRESENTATION, DECISION-MAKING OR CONTROL OVER THE LEGAL PERSON AND BENEFICIAL OWNERS

Not applicable to natural persons, Member States and local authorities

  1. declares that a natural or legal person who is a member of the administrative, management or supervisory body of the above-mentioned legal person, or who has powers of representation, decision or control with regard to the above-mentioned legal person (this covers e.g. company directors, members of management or supervisory bodies, and cases where one natural or legal person holds a majority of shares), or a beneficial owner of the person (as referred to in point 6 of article 3 of Directive (EU) No 2015/849) is in one of the following situations:

YES

NO

N/A

Situation (c) above (grave professional misconduct)

 

 

 

Situation (d) above (fraud, corruption or other criminal offence)

 

 

 

Situation (e) above (significant deficiencies in performance of a contract )

 

 

 

Situation (f) above (irregularity)

 

 

 

Situation (g) above (creation of an entity with the intent to circumvent legal obligations)

 

 

 

Situation (h) above (person created with the intent to circumvent legal obligations)

 

 

 

Situation (i) above

 

 

 

 

III – SITUATIONS OF EXCLUSION CONCERNING NATURAL OR LEGAL PERSONS ASSUMING UNLIMITED LIABILITY FOR THE DEBTS OF THE LEGAL PERSON

  1.  declares that a natural or legal person that assumes unlimited liability for the debts of the above-mentioned legal person is in one of the following situations:

YES

NO

N/A

Situation (a) above (bankruptcy)

 

 

 

Situation (b) above (breach in payment of taxes or social security contributions)

 

 

 

 

IV – GROUNDS FOR REJECTION FROM THIS PROCEDURE

(4) declares that the above-mentioned person:

YES

NO

Was previously involved in the preparation of the procurement documents used in this award procedure, where this entailed a breach of the principle of equality of treatment including distortion of competition that cannot be remedied otherwise.

 

 

 

V – REMEDIAL MEASURES

If the person declares one of the situations of exclusion listed above, it must indicate measures it has taken to remedy the exclusion situation, thus demonstrating its reliability. This may include e.g. technical, organisational and personnel measures to prevent further occurrence, compensation of damage or payment of fines or of any taxes or social security contributions. The relevant documentary evidence which illustrates the remedial measures taken must be provided in annex to this declaration. This does not apply for situations referred in point (d) of this declaration.

VI – EVIDENCE UPON REQUEST

Upon request and within the time limit set by the contracting authority the person must provide information on natural or legal persons that are members of the administrative, management or supervisory body or that have powers of representation, decision or control, including legal and natural persons within the ownership and control structure and beneficial owners.

It must also provide the following evidence concerning the person itself and the natural or legal persons on whose capacity the person intends to rely, or a subcontractor and concerning the natural or legal persons which assume unlimited liability for the debts of the person:

For situations described in (a), (c), (d), (f), (g) and (h), production of a recent extract from the judicial record is required or, failing that, an equivalent document recently issued by a judicial or administrative authority in the country of establishment of the person showing that those requirements are satisfied.

For the situation described in point (b), production of recent certificates issued by the competent authorities of the State concerned are required. These documents must provide evidence covering all taxes and social security contributions for which the person is liable, including for example, VAT, income tax (natural persons only), company tax (legal persons only) and social security contributions. Where any document described above is not issued in the country concerned, it may be replaced by a sworn statement made before a judicial authority or notary or, failing that, a solemn statement made before an administrative authority or a qualified professional body in its country of establishment.

The person is not required to submit the evidence if it has already been submitted for another award procedure of the same contracting authority. The documents must have been issued no more than one year before the date of their request by the contracting authority and must still be valid at that date.

The signatory declares that the person has already provided the documentary evidence for a previous procedure and confirms that there has been no change in its situation:

Document

Full reference to previous procedure

Insert as many lines as necessary.

 

 

VII – SELECTION CRITERIA

  1. declares that the above-mentioned person complies with the selection criteria applicable to it individually as provided in the tender specifications:

YES

NO

N/A

  1. It has the legal and regulatory capacity to pursue the professional activity needed for performing the contract as required in section 5.2.1 of the tender specifications;

 

 

 

  1. It fulfills the applicable economic and financial criteria indicated in section 5.2.2 of the tender specifications;

 

 

 

  1. It fulfills the applicable technical and professional criteria indicated in section 5.2.3 of the tender specifications.

 

 

 

 

 

  1.  if the above-mentioned person is the sole tenderer or the leader in case of joint tender, declares that:

YES

NO

N/A

  1. the tenderer, including all members of the group in case of joint tender and including subcontractors if applicable, complies with all the selection criteria for which a consolidated asseessment will be made as provided in the tender specifications.

 

 

 

     

 

VIII – EVIDENCE FOR SELECTION

The signatory declares that the above-mentioned person is able to provide the necessary supporting documents listed in the relevant sections of the tender specifications and which are not available electronically upon request and without delay.

The person is not required to submit the evidence if it has already been submitted for another procurement procedure of the same contracting authority. The documents must have been issued no more than one year before the date of their request by the contracting authority and must still be valid at that date.

The signatory declares that the person has already provided the documentary evidence for a previous procedure and confirms that there has been no change in its situation:

Document

Full reference to previous procedure

Insert as many lines as necessary.

 

 

The above-mentioned person must immediately inform the contracting authority of any changes in the situations as declared.

 

The above-mentioned person may be subject to rejection from this procedure and to administrative sanctions (exclusion or financial penalty) if any of the declarations or information provided as a condition for participating in this procedure prove to be false.

 

Full name                                                                                Date                                                                   Signature

 

 

 

 

 

Section 4

Evidence on selection criteria

If the supporting documents on the selection criteria are requested (see point 5.2 of the tender specifications), the tenderers shall complete the forms and/or submit the supporting documents listed here below.

Legal and regulatory capacity criteria

a)    Evidence on enrolment in a relevant professional or trade register, except for international organisations

 

  1. Evidence of professional and liability risk indemnity insurance valid for the execution of services foreseen in the present contract notice in The Republic of Botswana.

 

Economic and financial capacity criteria

a)    Income statements (Profit and Loss Statement) for the last two financial years for which accounts have been closed.

Technical and professional capacity criteria

a)      List of references and / or clients' reference letters in the fields related to the painting service contracts performed during the past three calendar years indicated in point 2 specifying whether the contract has been carried out in a professional manner in compliance with the contractual terms.

 

 

The following annexes shall be completed by the tenderer and send as part of its tender. The annexes shall be completed with tenderer's replies. The tenderers shall insert in the form itself the specific references to all the documents included in its tender.

Section 5

Technical tender

Table of compliance with the requirements in the procurement documents

EEAS-DELBWA………-SER-FWC 2020  PAINTING SERVICES

requirement

Yes / No

Tenderer's reply and or comments

Will there be proper preparation of all surfaces to be painted prior to painting?  (Surfaces must be dry, cleaned and free of all dirt, grit, grease, mould, mildew or any other foreign substance)

 

 

Will the primer to be used if and where required be of a high, durable quality?  (Specify in comments)

 

 

Will all cracks and holes in the wall be filled with spackle and sanded smooth prior to painting the surface?

 

 

Does all equipment and material comply with Botswana standards? 

 

 

Is off white wall paint quoted on of a high, durable quality and of a well-known brand?  (Specify the brand in the comments)

 

 

Will drop cloths be put down on areas where painting takes place?

 

 

At completion will painted work be touched up and restored where damaged, defaced or defective and left free from blemishes?

 

 

Does the tenderer have the necessary professional and experienced staff to perform the contract?

 

 

Specify the warranty on the paint works:

 

 

Are all documents mentioned in the Selection Criteria (under point 4.2.1 – 4.2.3) included in your tender?

 

 

 

 

I, .................... , the undersigned, being the authorised legal representative of [to be completed with the name of the tenderer; for joint tenders, this must include all members], hereby declare that we have examined and accept without reserve or restriction all the terms and conditions set out in the invitation to tender, in the tender specifications and in the draft purchase order for the tender procedure referred to above and, where appropriate, waive the tenderer's own general or specific terms and conditions. We offer to provide the services on the basis of our technical tender and our financial tender which do not diverge in any way from the requirements described in the tender documents as drafted by the contracting authority. Our tender complies with all the technical requirements indicated in the tender specifications.

We also undertake to respect these requirements scrupulously during the performance of the contract in case we become the awardee of the contract.

 

 

 

 

 

Name of the legal representative of the tenderer:

 

 

 

 

Signature:                                                                                       Date:]

 

 

 

 

Annex A -Financial tender

Price schedule over the duration of the contract in BWP

Item

Description

Type of unit

Number of units over the duration of the contract

Unit price in BWP 

 

Total price in BWP   

 

1

2

3

4

5

6 = 4 x 5

A

Plot 3166

Main house, servants quarter, cottage

2026 sqm

 

 

B

Plot 4979

Main house, cottage, double garage

877 sqm

 

 

C

Plot 4979

Boundary wall and mid wall

705 sqm

 

 

D

Plot 2516

Main house, cottage, garage

541 sqm

 

 

E

Plot 266

Main house, cottage, garage

569 sqm

 

 

TOTAL

 

 

 

Please note that the prices should be quoted free of all duties, taxes and other charges including VAT, as the Delegation of the European Union to the Republic of Botswana is exempt from such charges.

 

Prices must be all-inclusive ( = including preparation, materials i.e. paint, spackle, equipment, cleaning, all operational costs, administrative costs, logistical costs and transport costs, etc.)

 

 

Name: …………………………….                                  Date: ………………………………

 

 

Title: ………………………………                                  Signature: …………………………

 

Name of tenderer:

Name of the legal representative of the tenderer:

Date:                                                               Signature:

 

 

[1]               Delete if contractor is a natural person or a body governed by public law.

[2]               Delete if contractor is a body governed by public law. For natural persons, indicate the number of their identity card or, failing that, of their passport or equivalent.

[3]               OJ L 94 of 28.03.2014, p. 65

[4]               Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119, 4.5.2016, p. 1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG

[5]   Regulation (EU) 2018/1725 of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, OJ L 295/39, 21.11.2018, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1725&from=EN

 

[6]               Regulation (EU, EURATOM) No 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, repealing Regulation (EU, Euratom) No 966/2012:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2018:193:TOC

 

[7]               Delete if contractor is a natural person or a body governed by public law.

[8]               Delete if contractor is a body governed by public law. For natural persons, indicate the number of their identity card or, failing that, of their passport or equivalent.

[9]               OJ L 94 of 28.03.2014, p. 65

[10]             Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119, 4.5.2016, p. 1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG

[11]   Regulation (EU) 2018/1725 of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, OJ L 295/39, 21.11.2018, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1725&from=EN

 

[12]             Regulation (EU, EURATOM) No 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, repealing Regulation (EU, Euratom) No 966/2012:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2018:193:TOC

 

EUROPEAN UNION

DELEGATION TO THE REPUBLIC OF BOTSWANA

 

 

Head of Delegation

 

 

 

Gaborone,

Ares(2020)

 

Dear Sir/Madam,

 

Subject:         EEAS-DELBWA-04/01/2020-SER-FWC PAINTING SERVICES

 

  1. The European Union Delegation to the Republic of Botswana invites you to submit a tender for the contract referred to above. The procurement documents consist in this invitation letter, the tender specifications with their annexes, the draft contract and the instructions on the procedure "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" at the following link: https://eeas.europa.eu/headquarters/headquarters-homepage/8989_en
  2. If you are interested in this contract, you should submit a tender in one of the official languages of the European Union.

You must submit your tender exclusively on paper in one original and two (2) copies.  The time limit for submission of the tender is 31 January @ 12:00.  You must use one of the means of submission listed below. Submission is understood as the time at which the tenderer hands over the tender to the post office or courier service or at the reception of the Delegation.

Means of submission

Time limit

Evidence

Address for delivery

Post

Courier

 

24:00

 

Postmark

Deposit slip of courier service

CALL FOR TENDERS

EEAS-DELBWA-…….-SER-FWC 2020 PAINTING SERVICES

EU Delegation to the Republic of Botswana

For the attention of the Head of Administration

Robinson Road, Plot 758

Gaborone

 

P.O Box 1253

Gaborone

In person (hand delivery)

13:00 local time in Botswana

Proof of receipt, signed and dated by the agent at the reception of the Delegation

Hand delivery can be received from 08.00 to 16.00 Monday to Thursdays, from 08.00 to 12.00 on Fridays. The Delegation is closed on Saturdays, Sundays and official holidays of the contracting authority.

 

  1. The period of validity of the tender, during which tenderers may not modify the terms of their tenders in any respect, is three (3)  months from the date indicated in point
  2. Before the deadline of submission of the tender, any request for additional information must be made in writing to delegation-botswana-tenders@eeas.europa.eu

The contracting authority is not bound to reply to requests for additional information received less than five working days before the date of receipt of tenders indicated in point 3.

For more details, please refer to the document "Instructions applicable to negotiated procedure for (very) low and middle-value contracts ".

  1. An on-site visit is planned on 23 January 2020 at the following address: Robinson Road, Plot 758, Gaborone. Each tenderer shall send an email at delegation-botswana-tenders@eeas.europa.eu at the latest 4 calendar days prior to the visit to know the time that is allocated to each of them.

 

 

 

Jan Sadek
Authorizing Officer by Sub-Delegation

 

Annexes:

- Tender specifications, Annex I

- Technical specifications, Annex II

- Draft service framework contract

 

 

 

 

 

 

 

Annex 1 – technical tender

Statement of compliance with the tender documents

EEAS-04/01/2020-DELBWA-SER

 

 

I, .................... , the undersigned, being the authorised legal representative of [to be completed with the name of the tenderer; for joint tenders, this must include all members], hereby declare that we have examined and accept without reserve or restriction all the terms and conditions set out in the invitation to tender, in the tender specifications and in the draft purchase order for the tender procedure referred to above and, where appropriate, waive the tenderer's own general or specific terms and conditions. We offer to provide the services on the basis of our technical tender and our financial tender which do not diverge in any way from the requirements described in the tender documents as drafted by the contracting authority. Our tender complies with all the technical requirements indicated in the tender specifications.

We also undertake to respect these requirements scrupulously during the performance of the contract in case we become the awardee of the contract.

 

 

 

 

 

Name of the legal representative of the tenderer:

 

 

 

 

Signature:                                                                     Date:]

 

 

HEADING

 

 

 

 

 

 

 

 

 

SERVICE FRAMEWORK CONTRACT

NUMBER — EEAS-XXX- DELBWA-SER-FWC-2020

1. The [European Union (‘the Union’), represented by the European Union Delegation to Botswana and SADC (‘the contracting authority’), represented for the purposes of signing this framework contract by Mr Jan Sadek, Head of Delegation,

of the one part and

2. [Full official name]

[Official legal form ] [1]

[Statutory registration number][2]

[Full official address]

[VAT registration number]

(‘the contractor’), represented for the purpose of the signature of this framework contract by [forename, surname, function of legal representative and name of company in the case of a joint tender],

on the other part,

 

 

 

HAVE AGREED

 

to the special conditions, the general conditions for framework contracts for services and the following annexes:

Annex I –         Tender specifications (reference No [complete] of [insert date])

Annex II –        Contractor’s tender (reference No [complete] of [insert date])

Annex III –      Model for order form

which form an integral part of this framework contract (‘the FWC’).

This FWC sets out:

  1. the procedure by which the contracting authority may order services from the contractor;
  2. the provisions that apply to any specific contract which the contracting authority and the contractor may conclude under this FWC; and
  3. the obligations of the parties during and after the duration of this FWC.

All documents issued by the contractor (end-user agreements, general terms and conditions, etc.) except its tender are held inapplicable, unless explicitly mentioned in the special conditions of this FWC. In all circumstances, in the event of contradiction between this FWC and documents issued by the contractor, this FWC prevails, regardless of any provision to the contrary in the contractor’s documents.

 

 

 

Special Conditions

Order of priority of provisions

If there is any conflict between different provisions in this FWC, the following rules must be applied:

  1. The provisions set out in the special conditions take precedence over those in the other parts of the FWC.
  2. The provisions set out in the general conditions take precedence over those in the order form and specific contract (Annex III)
  3. The provisions set out in the order form and specific contract (Annex III) take precedence over those in the other annexes.
  4. The provisions set out in the tender specifications (Annex I) take precedence over those in the tender (Annex II).
  5. The provisions set out in the FWC take precedence over those in the specific contracts.

Any reference to specific contracts applies also to order forms.

Subject matter

The subject matter of the FWC is [short description of subject].

Entry into force and duration of the FWC

I.3.1    The FWC enters into force [on the date on which the last party signs it].

I.3.2    The implementation of the FWC cannot start before its entry into force.

I.3.3    The FWC is concluded for a period of xx months with effect from the date of its entry into force.

I.3.4    The parties must sign any specific contract before the FWC expires.

The FWC continues to apply to such specific contracts after its expiry. The services relating to such specific contracts must be performed no later than six months after the expiry of the FWC.

Type and implementation of the FWC

Type of the contract

The contracting authority awards a single FWC.

Period of provision of the services

The period for the provision of the services starts to run from the date on which the specific contract is signed by the last party.

Implementation of single FWC

The contracting authority orders services by sending the contractor a specific contract in paper format

Within five working days, the contractor must either:

- send the specific contract back to the contracting authority signed and dated; or

- send an explanation of why it cannot accept the order.

If the contractor repeatedly refuses to sign the specific contracts or repeatedly fails to send them back on time, the contractor may be considered in breach of its obligations under this FWC as set out in Article II.18.1 (c).

Prices

Maximum amount of the FWC and maximum prices

The maximum amount covering all services under this FWC is BWP  (amount in figures and in words). However, this does not bind the contracting authority to purchase for the maximum amount.

The maximum prices of the services are as listed in Annex II.

Price revision index

Price revision index is not applicable to this FWC.

Reimbursement of expenses

Reimbursement of expenses is not applicable to this FWC.

Payment arrangements

Pre-financing

Pre-financing is not applicable to this FWC.

Interim payment

Interim payment is not applicable to this FWC.

Payment of the balance

Balance payment is not applicable to this FWC.

Performance guarantee

        Performance guarantee is not applicable to this FWC.

Retention money guarantee

      Retention money guarantee is not applicable to this FWC.

Bank account

Payments must be made to the contractor’s bank account denominated in BWP, identified as follows:

Name of bank:

Full address of branch:

Exact denomination of account holder:

Full account number including bank codes:

IBAN code:

Communication details

For the purpose of this FWC, communications must be sent to the following addresses:

Contracting authority:

European Union Delegation to Botswana and SADC

Robinson Road, Plot 758

Postbox 1253, Gaborone

Email: Delegation-Botswana@eeas.europa.eu

 

٭٭٭

Contractor:

[Full name]

[Function]

[Company name]

[Full official address]

E-mail: [complete]

By derogation from this Article, different contact details for the contracting authority or the contractor may be provided in specific contracts.

Processing of personal data

Processing of personal data by the contracting authority

For the purpose of Article II.9.1,

  1. the data controller is the Head of the Delegation of the European Union to The Republic of Botswana and SADC.
  2. the data protection notice is available at:

https://eeas.europa.eu/sites/eeas/files/procurement_-_privacy_statement.pdf.

Processing of personal data by the contractor

This clause is not applicable to this FWC.

Exploitation of the results of the FWC

This clause is not applicable to this FWC.

Detailed list of modes of exploitation of the results

In accordance with Article II.13.1 whereby the Union acquires ownership of the results as defined in this FWC, including the tender specifications, these results may be used for any of the following modes of exploitation:

[a)        use for its own purposes

Licence or transfer of pre-existing rights

All pre-existing rights incorporated in the results, if any, are licensed to the Union as set out in Article II.13.2.

Provision of list of pre-existing rights and documentary evidence

The contractor must provide the contracting authority with a list of pre-existing rights as set Termination by either party

Applicable law and settlement of disputes

I.12.1  The FWC is governed by Union law, complemented, where necessary, by the law of The Republic of Botswana.

I.12.2  The courts of The Republic of Botswana have exclusive jurisdiction over any dispute regarding the interpretation, application or validity of the FWC.

I.13.1  This FWC is interinstitutional. The lead contracting authority acts on its own behalf and on behalf of the bodies listed in the title of the FWC as the contracting authorities, which provided the lead contracting authority with a power of attorney before FWC signature. The lead contracting authority signs the FWC and any amendments on behalf of itself and of all other contracting authorities.

I.13.2  Each contracting authority is responsible for the particular specific contracts it awards.

I.13.3  If the contractor has a complaint about the conclusion, performance or termination of a specific contract, the contractor remains bound by its obligations under the FWC and other specific contracts.

 

SIGNATURES

For the contractor,

[Company name/forename/surname/position]

 

Signature: _______________________

Done at [place], [date]

For the contracting authority,

[forename/surname/position]

 

Signature:_____________________

Done at [place], [date]

In duplicate in English.

 

GENERAL CONDITIONS FOR THE FRAMEWORK CONTRACT FOR SERVICES

Definitions

For the purpose of this FWC, the following definitions (indicated in italics in the text) apply:

‘Back office’: the internal system(s) used by the parties to process electronic invoices;

‘Confidential information or document’: any information or document received by either party from the other or accessed by either party in the context of the implementation of the FWC, that any of the parties has identified in writing as confidential. It may not include information that is publicly available;

‘Conflict of interest’: a situation where the impartial and objective implementation of the FWC by the contractor is compromised for reasons involving family, emotional life, political or national affinity, economic interest, or any other shared interest with the contracting authority or any third party related to the subject matter of the FWC;

‘Creator’: means any natural person who contributes to the production of the result;

‘EDI message’ (electronic data interchange): a message created and exchanged through the electronic transfer, from computer to computer, of commercial and administrative data using an agreed standard;

‘e-PRIOR’: the service-oriented communication platform that provides a series of web services and allows the exchange of standardised electronic messages and documents between the parties. This is done either through web services, with a machine-to-machine connection between the parties’ back office systems (EDI messages), or through a web application (the supplier portal). The Platform may be used to exchange electronic documents (e-documents) such as electronic requests for services, electronic specific contracts, electronic acceptance of services and electronic invoices between the parties. Technical specifications (i.e. the interface control document), details on access and user manuals are available at the following website: http://ec.europa.eu/dgs/informatics/supplier_portal/documentation/documentation_en.htm

‘Force majeure’: any unforeseeable, exceptional situation or event beyond the control of the parties that prevents either of them from fulfilling any of their obligations under the FWC. The situation or event must not be attributable to error or negligence on the part of the parties or on the part of the subcontractors and must prove to be inevitable despite their exercising due diligence. Defaults of service, defects in equipment or material or delays in making them available, labour disputes, strikes and financial difficulties may not be invoked as force majeure, unless they stem directly from a relevant case of force majeure;

‘Formal notification’ (or ‘formally notify’): form of communication between the parties made in writing by mail or email, which provides the sender with compelling evidence that the message was delivered to the specified recipient;

‘Fraud’: any intentional act or omission affecting the Union’s financial interests relating to the use or presentation of false, incorrect or incomplete statements or documents or to non-disclosure of information in violation of a specific obligation;

‘Implementation of the FWC’: the purchase of services envisaged in the FWC through the signature and performance of specific contracts;

‘Interface control document’: the guideline document which lays down the technical specifications, message standards, security standards, checks of syntax and semantics, etc. to facilitate machine-to-machine connection. This document is updated on a regular basis;

‘Irregularity’: any infringement of a provision of Union law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the Union’s budget.

‘Notification’ (or ‘notify’): form of communication between the parties made in writing including by electronic means;

‘Order form’: a simplified form of specific contract by which the contracting authority orders services under this FWC;

‘Performance of a specific contract’: the execution of tasks and delivery of the purchased services by the contractor to the contracting authority;

‘Personnel’: persons employed directly or indirectly or contracted by the contractor to implement the FWC;

‘Pre-existing material’: any material, document, technology or know-how which exists prior to the contractor using it for the production of a result in the implementation of the FWC;

‘Pre-existing right’: any industrial and intellectual property right on pre-existing material; it may consist in a right of ownership, a licence right and/or right of use belonging to the contractor, the creator, the contracting authority as well as to any other third parties;

‘Professional conflicting interest’: a situation in which the contractor’s previous or ongoing professional activities affect its capacity to implement the FWC or to perform a specific contract to an appropriate quality standard.

‘Related person’: any person who has the power to represent the contractor or to take decisions on its behalf;

‘Request for services’: a document from the contracting authority requesting that the contractors in a multiple FWC provide a specific tender for services whose terms are not entirely defined under the FWC;

‘Result’: any intended outcome of the implementation of the FWC, whatever its form or nature, which is delivered and finally or partially approved by the contracting authority. A result may be further defined in this FWC as a deliverable. A result may, in addition to materials produced by the contractor or at its request, also include pre-existing materials;

‘Specific contract’: a contract implementing the FWC and specifying details of a service to be provided;

‘Substantial error’: any infringement of a contract provision resulting from an act or omission, which causes or might cause a loss to the Union’s budget.

‘Supplier portal’: the e-PRIOR portal, which allows the contractor to exchange electronic business documents, such as invoices, through a graphical user interface; its main features can be found in the supplier portal overview document available on: http://ec.europa.eu/dgs/informatics/supplier_portal/doc/um_supplier_portal_overview.pdf

Roles and responsibilities in the event of a joint tender

In the event of a joint tender submitted by a group of economic operators and where the group does not have legal personality or legal capacity, one member of the group is appointed as leader of the group.

Severability

Each provision of this FWC is severable and distinct from the others. If a provision is or becomes illegal, invalid or unenforceable to any extent, it must be severed from the remainder of the FWC. This does not affect the legality, validity or enforceability of any other provisions of the FWC, which continue in full force and effect. The illegal, invalid or unenforceable provision must be replaced by a legal, valid and enforceable substitute provision which corresponds as closely as possible with the actual intent of the parties under the illegal, invalid or unenforceable provision. The replacement of such a provision must be made in accordance with Article II.11. The FWC must be interpreted as if it had contained the substitute provision as from its entry into force.

Provision of services

II.4.1               Signature of the FWC does not guarantee any actual purchase. The contracting authority is bound only by specific contracts implementing the FWC.

II.4.2   The contractor must provide services of high quality standards, in accordance with the state of the art in the industry and the provisions of this FWC, in particular the tender specifications and the terms of its tender.

II.4.3   The contractor must comply with the minimum requirements provided for in the tender specifications. This includes compliance with applicable obligations under environmental, social and labour law established by Union law, national law and collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU[3], compliance with data protection obligations resulting from Regulation (EU) 2016/679[4] and Regulation (EU) 2018/1725[5].

II.4.4   The contractor must obtain any permit or licence required in the State where the services are to be provided.

II.4.5   All periods specified in the FWC are calculated in calendar days, unless otherwise specified.

II.4.6   The contractor must not present itself as a representative of the contracting authority and must inform third parties that it is not part of the European public service.

II.4.7   The contractor is responsible for the personnel who carry out the services and exercises its authority over its personnel without interference by the contracting authority. The contractor must inform its personnel that:

  1. they may not accept any direct instructions from the contracting authority; and
  2. their participation in providing the services does not result in any employment or contractual relationship with the contracting authority.

II.4.8   The contractor must ensure that the personnel implementing the FWC and any future replacement personnel possess the professional qualifications and experience required to provide the services, as the case may be on the basis of the selection criteria set out in the tender specifications.

II.4.9   At the contracting authority’s reasoned request, the contractor must replace any member of personnel who:

  1. does not have the expertise required to provide the services; or
  2. has caused disruption at the premises of the contracting authority.

The contractor bears the cost of replacing its personnel and is responsible for any delay in providing the services resulting from the replacement of personnel.

II.4.10 The contractor must record and report to the contracting authority any problem that affects its ability to provide the services. The report must describe the problem, state when it started and what action the contractor is taking to resolve it.

Communication between the parties

Form and means of communication

Any communication of information, notices or documents under the FWC must:

  1. be made in writing in paper or electronic format in the language of the contract;
  2. bear the FWC number and, if applicable, the specific contract number;
  3. be made using the relevant communication details set out in Article I.8; and
  4. be sent by mail, email or, for the documents specified in the special conditions, via e-PRIOR.

If a party requests written confirmation of an e-mail within a reasonable time, the other party must provide an original signed paper version of the communication as soon as possible.

The parties agree that any communication made by email has full legal effect and is admissible as evidence in judicial proceedings.

Date of communications by mail and email

Any communication is deemed to have been made when the receiving party receives it, unless this FWC contract refers to the date when the communication was sent.

E-mail is deemed to have been received by the receiving party on the day of dispatch of that e-mail, provided that it is sent to the e-mail address indicated in Article I.8. The sending party must be able to prove the date of dispatch. In the event that the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the communication by email or mail. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline.

Mail sent to the contracting authority is deemed to have been received by the contracting authority on the date on which the department responsible referred to in Article I.8 registers it.

Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message was delivered to the specified recipient.

Submission of e-documents via e-PRIOR

  1. If provided for in the special conditions, the exchange of electronic documents (e-documents) such as requests for services, specific contracts and invoices between the parties is automated through the use of the e-PRIOR platform. This platform provides two possibilities for such exchanges: either through web services (machine-to-machine connection) or through a web application (the supplier portal).
  2. The contracting authority takes the necessary measures to implement and maintain electronic systems that enable the supplier portal to be used effectively.
  3. In the case of machine-to-machine connection, a direct connection is established between the parties’ back offices. In this case, the parties take the measures necessary on their side to implement and maintain electronic systems that enable the machine-to-machine connection to be used effectively. The electronic systems are specified in the interface control document. The contractor (or leader in the case of a joint tender) must take the necessary technical measures to set up a machine-to-machine connection and at its own cost.
  4. If communication via the supplier portal or via the web services (machine-to-machine connection) is hindered by factors beyond the control of one party, it must notify the other immediately and the parties must take the necessary measures to restore this communication.
  5. If it is impossible to restore the communication within two working days, one party must notify the other that alternative means of communication specified in Article II.5.1 will be used until the supplier portal or the machine-to-machine connection is restored.
  6. When a change in the interface control document requires adaptations, the contractor (or leader in the case of a joint tender) has up to six months from receipt of the notification to implement this change. This period can be shortened by mutual agreement of the parties. This period does not apply to urgent measures required by the security policy of the contracting authority to ensure integrity, confidentiality and non-repudiation of information and the availability of e-PRIOR, which must be applied immediately.

Validity and date of e-documents

  1. The parties agree that any e-document, including related attachments exchanged via e-PRIOR:
  1. is considered as equivalent to a paper document;
  2. is deemed to be the original of the document;
  3. is legally binding on the parties once an e-PRIOR authorised person has performed the ‘sign’ action in e-PRIOR and has full legal effect; and
  4. constitutes evidence of the information contained in it and is admissible as evidence in judicial proceedings.
  1. The parties expressly waive any rights to contest the validity of such a document solely on the grounds that communications between the parties occurred through e-PRIOR or that the document has been signed through e-PRIOR. If a direct connection is established between the parties’ back offices to allow electronic transfer of documents, the parties agree that an e-document, sent as mentioned in the interface control document, qualifies as an EDI message.
  2. If the e-document is dispatched through the supplier portal, it is deemed to have been legally issued or sent when the contractor (or leader in the case of a joint tender) is able to successfully submit the e-document without any error messages. The generated PDF and XML document for the e-document are considered as a proof of receipt by the contracting authority.
  3. In the event that an e-document is dispatched using a direct connection established between the parties’ back offices, the e-document is deemed to have been legally issued or sent when its status is ‘received’ as defined in the interface control document.
  4. When using the supplier portal, the contractor (or leader in the case of a joint tender) can download the PDF or XML message for each e-document for one year after submission. After this period, copies of the e-documents are no longer available for automatic download from the supplier portal.

 Authorised persons in e-PRIOR

The contractor submits a request for each person who needs to be assigned the role of ‘user’ in e-PRIOR. These persons are identified by means of the European Communication Authentication Service (ECAS) and authorised to access and perform actions in e-PRIOR within the permissions of the user roles that the contracting authority has assigned to them.

User roles enabling these e-PRIOR authorised persons to sign legally binding documents such as specific tenders or specific contracts are granted only upon submission of supporting documents proving that the authorised person is empowered to act as a legal representative of the contractor.

Liability

II.6.1   The contracting authority is not liable for any damage or loss caused by the contractor, including any damage or loss to third parties during or as a consequence of implementation of the FWC.

II.6.2   If required by the relevant applicable legislation, the contractor must take out an insurance policy against risks and damage or loss relating to the implementation of the FWC. It must also take out supplementary insurance as reasonably required by standard practice in the industry. Upon request, the contractor must provide evidence of insurance coverage to the contracting authority.

II.6.3   The contractor is liable for any loss or damage caused to the contracting authority during or as a consequence of implementation of the FWC, including in the event of subcontracting, but only up to an amount not exceeding three times the total amount of the relevant specific contract. However, if the damage or loss is caused by the gross negligence or wilful misconduct of the contractor or of its personnel or subcontractors, the contractor is liable for the whole amount of the damage or loss.

II.6.4   If a third party brings any action against the contracting authority in connection with the implementation of the FWC, including any action for alleged breach of intellectual property rights, the contractor must assist the contracting authority in the legal proceedings, including by intervening in support of the contracting authority upon request.
If the contracting authority’s liability towards the third party is established and that such liability is caused by the contractor during or as a consequence of the implementation of the FWC, Article II.6.3 applies.

II.6.5   If the contractor is composed of two or more economic operators (i.e. who submitted a joint tender), they are all jointly and severally liable to the contracting authority for the implementation of the FWC.

II.6.6   The contracting authority is not liable for any loss or damage caused to the contractor during or as a consequence of implementation of the FWC, unless the loss or damage was caused by wilful misconduct or gross negligence of the contracting authority.

Conflict of interest and professional conflicting interests

II.7.1   The contractor must take all the necessary measures to prevent any situation of conflict of interest or professional conflicting interest.

II.7.2   The contractor must notify the contracting authority in writing as soon as possible of any situation that could constitute a conflict of interest or a professional conflicting interest during the implementation of the FWC. The contractor must immediately take action to rectify the situation.

The contracting authority may do any of the following:

  1. verify that the contractor’s action is appropriate;
  2. require the contractor to take further action within a specified deadline;
  3. decide not to award a specific contract to the contractor.

II.7.3   The contractor must pass on all the relevant obligations in writing to:

  1. its personnel;
  2.  any natural person with the power to represent it or take decisions on its behalf;
  3. third parties involved in the implementation of the FWC, including subcontractors.

The contractor must also ensure that the persons referred to above are not placed in a situation which could give rise to conflicts of interest.

Confidentiality

II.8.1.  The contracting authority and the contractor must treat with confidentiality any information or documents, in any format, disclosed in writing or orally, relating to the implementation of the FWC and identified in writing as confidential.

II.8.2.  Each party must:

(a)   not use confidential information or documents for any purpose other than to perform its obligations under the FWC or a specific contract without the prior written agreement of the other party;

(b)   ensure the protection of such confidential information or documents with the same level of protection as its own confidential information or documents and in any case with due diligence;

(c)   not disclose, directly or indirectly, confidential information or documents to third parties without the prior written agreement of the other party.

II.8.3   The confidentiality obligations set out in this Article are binding on the contracting authority and the contractor during the implementation of the FWC and for as long as the information or documents remain confidential unless:

(a)   the disclosing party agrees to release the receiving party from the confidentiality obligation earlier;

(b)   the confidential information or documents become public through other means than a breach of the confidentiality obligation;

(c)   the applicable law requires the disclosure of the confidential information or documents.

II.8.4   The contractor must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the implementation of the FWC a commitment that they will comply with this Article. At the request of the contracting authority, the contractor must provide a document providing evidence of this commitment.

Processing of personal data

II.9.1   Processing of personal data by the contracting authority

Any personal data included in or relating to the FWC, including its implementation, shall be processed in accordance with Regulation (EU) 2018/1725. Such data shall be processed solely for the purposes of the implementation, management and monitoring of the FWC by the data controller.

 

The contractor or any other person whose personal data is processed by the data controller in relation to this FWC has specific rights as a data subject under Chapter III (Articles 14-25) of Regulation (EU) 2018/1725, in particular the right to access, rectify or erase their personal data and the right to restrict or, where applicable, the right to object to processing or the right to data portability.

 

Should the contractor or any other person whose personal data is processed in relation to this FWC have any queries concerning the processing of its personal data, it shall address itself to the data controller. They may also address themselves to the Data Protection Officer of the data controller. They have the right to lodge a complaint at any time to the European Data Protection Supervisor.

 

Details concerning the processing of personal data are available in the data protection notice referred to in Article I.9.

II.9.2   Processing of personal data by the contractor

The processing of personal data by the contractor shall meet the requirements of Regulation (EU) 2018/1725 and be processed solely for the purposes set out by the controller.

The contractor shall assist the controller for the fulfilment of the controller’s obligation to respond to requests for exercising rights of person whose personal data is processed in relation to this FWC as laid down in Chapter III (Articles 14-25) of Regulation (EU) 2018/1725. The contractor shall inform without delay the controller about such requests.

The contractor may act only on documented written instructions and under the supervision of the controller, in particular with regard to the purposes of the processing, the categories of data that may be processed, the recipients of the data and the means by which the data subject may exercise its rights.

The contractor shall grant personnel access to the data to the extent strictly necessary for the implementation, management and monitoring of the FWC. The contractor must ensure that personnel authorised to process personal data has committed itself to confidentiality or is under appropriate statutory obligation of confidentiality in accordance with the provisions of Article II.8.

 

The contractor shall adopt appropriate technical and organisational security measures, giving due regard to the risks inherent in the processing and to the nature, scope, context and purposes of processing, in order to ensure, in particular, as appropriate:

 

  1. the pseudonymisation and encryption of personal data;
  2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
  4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;
  5. measures to protect personal data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to personal data transmitted, stored or otherwise processed.

The contractor shall notify relevant personal data breaches to the controller without undue delay and at the latest within 48 hours after the contractor becomes aware of the breach. In such cases, the contractor shall provide the controller with at least the following information:

 

  1. nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
  2. likely consequences of the breach;
  3. measures taken or proposed to be taken to address the breach, including, where appropriate, measures to mitigate its possible adverse effects.

The contractor shall immediately inform the data controller if, in its opinion, an instruction infringes Regulation (EU) 2018/1725, Regulation (EU) 2016/679, or other Union or Member State data protection provisions as referred to in the tender specifications.

The contractor shall assist the controller for the fulfilment of its obligations pursuant to Article 33 to 41 under Regulation (EU) 2018/1725 to:

  1. ensure compliance with its data protection obligations regarding the security of the processing, and  the confidentiality of electronic communications and directories of users;
  2. notify a personal data breach to the European Data Protection Supervisor;
  3. communicate a personal data breach without undue delay to the data subject, where applicable;
  4. carry out data protection impact assessments and prior consultations as necessary.

The contractor shall maintain a record of all data processing operations carried on behalf of the controller, transfers of personal data, security breaches, responses to requests for exercising rights of people whose personal data is processed and requests for access to personal data by third parties.

The contracting authority is subject to Protocol 7 of the Treaty on the Functioning of the European Union on the privileges and immunities of the European Union, particularly as regards the inviolability of archives (including the physical location of data and services as set out in Article I.9.2) and data security, which includes personal data held on behalf of the contracting authority in the premises of the contractor or subcontractor.

The contractor shall notify the contracting authority without delay of any legally binding request for disclosure of the personal data processed on behalf of the contracting authority made by any national public authority, including an authority from a third country. The contractor may not give such access without the prior written authorisation of the contracting authority.

The duration of processing of personal data by the contractor will not exceed the period referred to in Article II.24.2. Upon expiry of this period, the contractor shall, at the choice of the controller, return, without any undue delay in a commonly agreed format, all personal data processed on behalf of the controller and the copies thereof or shall effectively delete all personal data unless Union or national law requires a longer storage of personal data.

For the purpose of Article II.10, if part or all of the processing of personal data is subcontracted to a third party, the contractor shall pass on the obligations referred to in Articles I.9.2 and II.9.2 in writing to those parties, including subcontractors. At the request of the contracting authority, the contractor shall provide a document providing evidence of this commitment.

Subcontracting

II.10.1   The contractor must not subcontract and have the FWC implemented by third parties beyond the third parties already mentioned in its tender without prior written authorisation from the contracting authority.

II.10.2   Even if the contracting authority authorises subcontracting, the contractor remains bound by its contractual obligations and is solely responsible for the implementation of the FWC.

II.10.3   The contractor must ensure that the subcontract does not affect the rights of the contracting authority under this FWC, particularly those under Articles II.8, II.13 and II.24.

II.10.4   The contracting authority may request the contractor to replace a subcontractor found to be in a situation provided for in points (d) and (e) of Article II.18.1.

Amendments

II.11.1   Any amendment to the FWC or a specific contract must be made in writing before all contractual obligations have been fulfilled. A specific contract does not constitute an amendment to the FWC.

II.11.2   Any amendment must not make changes to the FWC or a specific contract that might alter the initial conditions of the procurement procedure or result in unequal treatment of tenderers or contractors.

Assignment

II.12.1   The contractor must not assign any of the rights and obligations arising from the FWC, including claims for payments or factoring, without prior written authorisation from the contracting authority. In such cases, the contractor must provide the contracting authority with the identity of the intended assignee.

II.12.2   Any right or obligation assigned by the contractor without authorisation is not enforceable against the contracting authority.

Intellectual property rights

Ownership of the rights in the results

The Union acquires irrevocably worldwide ownership of the results and of all intellectual property rights under the FWC. The intellectual property rights so acquired include any rights, such as copyright and other intellectual or industrial property rights, to any of the results and to all technological solutions and information created or produced by the contractor or by its subcontractor in implementation of the FWC. The contracting authority may exploit and use the acquired rights as stipulated in this FWC. The Union acquires all the rights from the moment the contracting authority approves the results delivered by the contractor. Such delivery and approval are deemed to constitute an effective assignment of rights from the contractor to the Union.

The payment of the price includes any fees payable to the contractor about the acquisition of ownership of rights by the Union including for all forms of exploitation and of use of the results.

Licensing rights on pre-existing materials

Unless provided otherwise in the special conditions, the Union does not acquire ownership of pre-existing rights under this FWC.

The contractor licenses the pre-existing rights on a royalty-free, non-exclusive and irrevocable basis to the Union, which may use the pre-existing materials for all the modes of exploitation set out in this FWC or in specific contracts. All pre-existing rights are licensed to the Union from the moment the results are delivered and approved by the contracting authority.

The licensing of pre-existing rights to the Union under this FWC covers all territories worldwide and is valid for the duration of intellectual property rights protection.

The payment of the price as set out in the specific contracts is deemed to also include any fees payable to the contractor in relation to the licensing of pre-existing rights to the Union, including for all forms of exploitation and of use of the results.

Where implementation of the FWC requires that the contractor uses pre-existing materials belonging to the contracting authority, the contracting authority may request that the contractor signs an adequate licence agreement. Such use by the contractor will not entail any transfer of rights to the contractor and is limited to the needs of this FWC.

Exclusive rights

The Union acquires the following exclusive rights:

  1. reproduction: the right to authorise or prohibit direct or indirect, temporary or permanent reproduction of the results by any means (mechanical, digital or other) and in any form, in whole or in part;
  2. communication to the public: the exclusive right to authorise or prohibit any display, performance or communication to the public, by wire or wireless means, including the making available to the public of the results in such a way that members of the public may access them from a place and at a time individually chosen by them; this right also includes the communication and broadcasting by cable or by satellite;
  3. distribution: the exclusive right to authorise or prohibit any form of distribution of results or copies of the results to the public, by sale or otherwise;
  4. rental: the exclusive right to authorise or prohibit rental or lending of the results or of copies of the results;
  5. adaptation: the exclusive right to authorise or prohibit any modification of the results;
  6. translation: the exclusive right to authorise or prohibit any translation, adaptation, arrangement, creation of derivative works based on the results, and any other alteration of the results, subject to the respect of moral rights of authors, where applicable;
  7. where the results are or include a database: the exclusive right to authorise or prohibit the extraction of all or a substantial part of the contents of the database to another medium by any means or in any form; and the exclusive right to authorise or prohibit the re-utilization of all or a substantial part of the contents of the database by the distribution of copies, by renting, by on-line or other forms of transmission;
  8. where the results are or include a patentable subject-matter: the right to register them as a patent and to further exploit such patent to the fullest extent;
  9. where the results are or include logos or subject-matter which could be registered as a trademark: the right to register such logo or subject-matter as a trademark and to further exploit and use it;
  10. where the results are or include know-how: the right to use such know-how as is necessary to make use of the results to the full extent provided for by this FWC, and the right to make it available to contractors or subcontractors acting on behalf of the contracting authority, subject to their signing of adequate confidentiality undertakings where necessary;
  11. where the results are documents:
            1. the right to authorise the reuse of the documents in conformity with the Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU), to the extent it is applicable and the documents fall within its scope and are not excluded by any of its provisions; for the sake of this provision, ‘reuse’ and ‘document’ have the meaning given to it by this Decision;
            1. the right to store and archive the results in line with the document management rules applicable to the contracting authority, including digitisation or converting the format for preservation or new use purposes;
  1. where the results are or incorporate software, including source code, object code and, where relevant, documentation, preparatory materials and manuals, in addition to the other rights mentioned in this Article:
            1. end-user rights, for all uses by the Union or by subcontractors acting on behalf of the Union which result from this FWC and from the intention of the parties;
            1. the rights to decompile or disassemble the software;
  1. to the extent that the contractor may invoke moral rights, the right for the contracting authority, except where otherwise provided in this FWC, to publish the results with or without mentioning the creator(s)’ name(s), and the right to decide when and whether the results may be disclosed and published.

The contractor warrants that the exclusive rights and the modes of exploitation may be exercised by the Union on all parts of the results, be they created by the contractor or consisting of pre-existing materials.

Where pre-existing materials are inserted in the results, the contracting authority may accept reasonable restrictions impacting on the above list, provided that the said materials are easily identifiable and separable from the rest, that they do not correspond to substantial elements of the results, and that, should the need arise, satisfactory replacement solutions exist, at no additional costs to the contracting authority. In such case, the contractor will have to clearly inform the contracting authority before making such choice and the contracting authority has the right to refuse it.

Identification of pre-existing rights

When delivering the results, the contractor must warrant that, for any use that the contracting authority may envisage within the limits set in this FWC, the results and the pre-existing material incorporated in the results are free of claims from creators or from any third parties and all the necessary pre-existing rights have been obtained or licensed.

To that effect, the contractor must establish a list of all pre-existing rights to the results of this FWC or parts thereof, including identification of the rights’ owners. If there are no pre-existing rights to the results, the contractor must provide a declaration to that effect. The contractor must provide this list or declaration to the contracting authority together with the invoice for payment of the balance at the latest.

  Evidence of granting of pre-existing rights

Upon request by the contracting authority, the contractor must provide evidence that it has the ownership or the right to use all the listed pre-existing rights, except for the rights owned or licensed by the Union. The contracting authority may request this evidence even after the end of this FWC.

This evidence may refer, for example, to rights to: parts of other documents, images, graphs, fonts, tables, data, software, technical inventions, know-how, IT development tools, routines, subroutines or other programs (‘background technology’), concepts, designs, installations or pieces of art, data, source or background materials or any other parts of external origin.

This evidence must include, as appropriate:

  1. the name and version number of a software product;
  2. the full identification of the work and its author, developer, creator, translator, data entry person, graphic designer, publisher, editor, photographer, producer;
  3. a copy of the licence to use the product or of the agreement granting the relevant rights to the contractor or a reference to this licence;
  4. a copy of the agreement or extract from the employment contract granting the relevant rights to the contractor where parts of the results were created by its personnel;
  5. the text of the disclaimer notice if any.

Provision of evidence does not release the contractor from its responsibilities if it is found that it does not hold the necessary rights, regardless of when and by whom this fact is revealed.

The contractor also warrants that it possesses the relevant rights or powers to execute the transfer and that it has paid or has verified payment of all due fees including fees due to collecting societies, related to the final results.

Quotation of works in the result

In the result, the contractor must clearly point out all quotations of existing works. The complete reference should include as appropriate, the following: name of the author, title of the work, date and place of publication, date of creation, address of publication on the internet, number, volume and other information that allows the origin to be easily identified.

Moral rights of creators

By delivering the results, the contractor warrants that the creators will not object to the following on the basis of their moral rights under copyright:

  1. that their names be mentioned or not mentioned when the results are presented to the public;
  2. that the results be divulged or not after they have been delivered in their final version to the contracting authority;
  3. that the results be adapted, provided that this is done in a manner which is not prejudicial to the creator’s honour or reputation.

If moral rights on parts of the results protected by copyright may exist, the contractor must obtain the consent of creators regarding the granting or waiver of the relevant moral rights in accordance with the applicable legal provisions and be ready to provide documentary evidence upon request.

Image rights and sound recordings

If natural persons appear in a result or their voice or any other private element is recorded in a recognisable manner, the contractor must obtain a statement by these persons (or, in the case of minors, by the persons exercising parental authority) giving their permission for the described use of their image, voice or private element and, on request, submit a copy of the permission to the contracting authority. The contractor must take the necessary measures to obtain such consent in accordance with the applicable legal provisions.

Copyright notice for pre-existing rights

When the contractor retains pre-existing rights on parts of the results, reference must be inserted to that effect when the result is used as set out in Article I.10.1, with the following disclaimer: ‘© — year — European Union. All rights reserved. Certain parts are licensed under conditions to the EU’, or with any other equivalent disclaimer as the contracting authority may consider best appropriate, or as the parties may agree on a case-by-case basis. This does not apply where inserting such reference would be impossible, notably for practical reasons.

Visibility of Union funding and disclaimer

When making use of the results, the contractor must declare that they have been produced under a contract with the Union and that the opinions expressed are those of the contractor only and do not represent the contracting authority’s official position. The contracting authority may waive this obligation in writing or provide the text of the disclaimer.

Force majeure

II.14.1   If a party is affected by force majeure, it must immediately notify the other party, stating the nature of the circumstances, their likely duration and foreseeable effects.

II.14.2   A party is not liable for any delay or failure to perform its obligations under the FWC if that delay or failure is a result of force majeure. If the contractor is unable to fulfil its contractual obligations owing to force majeure, it has the right to remuneration only for the services actually provided.

II.14.3   The parties must take all necessary measures to limit any damage due to force majeure.

Liquidated damages

 Delay in delivery

If the contractor fails to perform its contractual obligations within the applicable time limits set out in this FWC, the contracting authority may claim liquidated damages for each day of delay using the following formula:

0.3 x (V/d)

where:

V is the price of the relevant purchase or deliverable or result;

d is the duration specified in the relevant specific contract for delivery of the relevant purchase or deliverable or result or, failing that, the period between the date specified in Article I.4.2 and the date of delivery or performance specified in the relevant specific contract, expressed in days.

Liquidated damages may be imposed together with a reduction in price under the conditions laid down in Article II.16.

Procedure

The contracting authority must formally notify the contractor of its intention to apply liquidated damages and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to apply liquidated damages; or

(b) of its final decision to apply liquidated damages and the corresponding amount.

Nature of liquidated damages

The parties expressly acknowledge and agree that any amount payable under this Article is not a penalty and represents a reasonable estimate of fair compensation for the damage incurred due to failure to provide the services within the applicable time limits set out in this FWC.

Claims and liability

Any claim for liquidated damages does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

Reduction in price

Quality standards

If the contractor fails to provide the service in accordance with the FWC or a specific contract (‘unperformed obligations’) or if it fails to provide the service in accordance with the expected quality levels specified in the tender specifications (‘low quality delivery’), the contracting authority may reduce or recover payments proportionally to the seriousness of the unperformed obligations or low quality delivery. This includes in particular cases where the contracting authority cannot approve a result, report or deliverable as defined in Article I.6 after the contractor has submitted the required additional information, correction or new version.

A reduction in price may be imposed together with liquidated damages under the conditions of Article II.15.

Procedure

The contracting authority must formally notify the contractor of its intention to reduce payment and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to reduce payment; or

(b) of its final decision to reduce payment and the corresponding amount,.

Claims and liability

Any reduction in price does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

Suspension of the implementation of the FWC

Suspension by the contractor

If the contractor is affected by force majeure, it may suspend the provision of the services under a specific contract.

The contractor must immediately notify the contracting authority of the suspension. The notification must include a description of the force majeure and state when the contractor expects to resume the provision of services.

The contractor must notify the contracting authority as soon as it is able to resume performance of the specific contract, unless the contracting authority has already terminated the FWC or the specific contract.

Suspension by the contracting authority

The contracting authority may suspend the implementation of the FWC or performance of a specific contract or any part of it:

(a)   if the procedure for awarding the FWC or a specific contract or the implementation of the FWC proves to have been subject to substantial errors, irregularities or fraud;

(b)   in order to verify whether the presumed substantial errors, irregularities or fraud actually occurred.

The contracting authority must formally notify the contractor of the suspension. Suspension takes effect on the date of formal notification, or at a later date if the formal notification so provides.

The contracting authority must notify the contractor as soon as possible whether:

  1. it is lifting the suspension; or
  2. it intends to terminate the FWC or a specific contract under Article II.18.1(f) or (j).

The contractor is not entitled to compensation for suspension of any part of the FWC or a specific contract.

Termination of the FWC

Grounds for termination by the contracting authority

The contracting authority may terminate the FWC or a specific contract in the following circumstances:

  1. if provision of the services under a pending specific contract has not actually started within 15 days of the scheduled date and the contracting authority considers the new date proposed, if any, unacceptable, taking into account Article II.11.2;
  2. if the contractor is unable, through its own fault, to obtain any permit or licence required for implementation of the FWC;
  3. if the contractor does not implement the FWC or perform the specific contract in accordance with the tender specifications or request for service or is in breach of another substantial contractual obligation or repeatedly refuses to sign specific contracts. Termination of three or more specific contracts in these circumstances also constitutes grounds for termination of the FWC;
  4. if the contractor or any person that assumes unlimited liability for the debts of the contractor is in one of the situations provided for in points (a) and (b) of Article 136(1) of the Financial Regulation[6];
  5. if the contractor or any related person is subject to any of the situations provided for in points (c) to (f) of Article 136(1) or to Article 136(2) of the Financial Regulation.
  6. if the procedure for awarding the FWC or the implementation of the FWC prove to have been subject to substantial errors, irregularities or fraud;
  7. if the contractor does not comply with applicable obligations under environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU;
  8. if the contractor is in a situation that could constitute a conflict of interest or a professional conflicting interest as referred to in Article II.7;
  9. if a change to the contractor’s legal, financial, technical, organisational or ownership situation is likely to substantially affect the implementation of the FWC or substantially modify the conditions under which the FWC was initially awarded;
  10. in the event of force majeure, where either resuming implementation is impossible or the necessary ensuing amendments to the FWC or a specific contract would mean that the tender specifications are no longer fulfilled or result in unequal treatment of tenderers or contractors;
  11. if the needs of the contracting authority change and it no longer requires new services under the FWC; in such cases ongoing specific contracts remain unaffected;
  12. if the termination of the FWC with one or more of the contractors means that the multiple FWC with reopening of competition no longer has the minimum required level of competition;
  13. if the contractor is in breach of the data protection obligations resulting from Article II.9.2;
  14. if the contractor does not comply with the applicable data protection obligations resulting from Regulation (EU) 2016/679.

Grounds for termination by the contractor

The contractor may terminate the FWC or a specific contract if:

  1. it has evidence that the contracting authority has committed substantial errors, irregularities or fraud in the procedure for awarding the FWC or the implementation of the FWC;
  2. the contracting authority fails to comply with its obligations, in particular the obligation to provide the information needed for the contractor to implement the FWC or to perform a specific contract as provided for in the tender specifications.

Procedure for termination

A party must formally notify the other party of its intention to terminate the FWC or a specific contract and the grounds for termination.

The other party has 30 days following the date of receipt to submit observations, including the measures it has taken to continue fulfilling its contractual obligations. Failing that, the decision to terminate becomes enforceable the day after the time limit for submitting observations has elapsed.

If the other party submits observations, the party intending to terminate must formally notify it either of the withdrawal of its intention to terminate or of its final decision to terminate.

In the cases referred to in points (a) to (d), (g) to (i), (k) and (l) of Article II.18.1 and in Article II.18.2, the date on which the termination takes effect must be specified in the formal notification.

In the cases referred to in points (e), (f) and (j) of Article II.18.1, the termination takes effect on the day following the date on which the contractor receives notification of termination.

In addition, at the request of the contracting authority and regardless of the grounds for termination, the contractor must provide all necessary assistance, including information, documents and files, to allow the contracting authority to complete, continue or transfer the services to a new contractor or internally, without interruption or adverse effect on the quality or continuity of the services. The parties may agree to draw up a transition plan detailing the contractor’s assistance unless such plan is already detailed in other contractual documents or in the tender specifications. The contractor must provide such assistance at no additional cost, except if it can demonstrate that it requires substantial additional resources or means, in which case it must provide an estimate of the costs involved and the parties will negotiate an arrangement in good faith.

Effects of termination

The contractor is liable for damage incurred by the contracting authority as a result of the termination of the FWC or a specific contract including the cost of appointing another contractor to provide or complete the services, unless the damage was caused by the situation specified in Article II.18.1(j), (k) or (l) or in Article II.18.2. The contracting authority may claim compensation for such damage.

The contractor is not entitled to compensation for any loss resulting from the termination of the FWC or a specific contract, including loss of anticipated profits, unless the loss was caused by the situation specified in Article II.18.2.

The contractor must take all appropriate measures to minimise costs, prevent damage and cancel or reduce its commitments.

Within 60 days of the date of termination, the contractor must submit any report, deliverable or result and any invoice required for services that were provided before the date of termination.

In the case of joint tenders, the contracting authority may terminate the FWC or a specific contract with each member of the group separately  on the basis of points (d), (e) or (g) of Article II.18.1, under the conditions set out in Article II.11.2

Invoices, value added tax and e-invoicing

Invoices and value added tax

Invoices must contain the contractor’s (or leader’s in the case of a joint tender) identification data, the amount, the currency and the date, as well as the FWC reference and reference to the specific contract.

Invoices must indicate the place of taxation of the contractor (or leader in the case of a joint tender) for value added tax (VAT) purposes and must specify separately amounts not including VAT and amounts including VAT.

The contracting authority is exempt from all taxes and duties, including VAT, in accordance with Articles 3 and 4 of the Protocol on the privileges and immunities of the European Union.

Unless otherwise stated in the tender specifications, in the specific contract or in the order form, the contracting authority is exempt from all taxes, duties and other charges, including VAT, in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961 and the particular Headquarters' agreements concluded between the host state and the European Union institution, which grant an exemption equivalent to that stated in the Vienna Convention.

The contractor (or leader in the case of a joint tender) must complete the necessary formalities with the relevant authorities to ensure that the supplies and services required for implementation of the FWC are exempt from taxes and duties, including VAT.

E-invoicing

If provided for in the special conditions, the contractor (or leader in the case of a joint tender) submits invoices in electronic format if the conditions regarding electronic signature specified by Directive 2006/112/EC on VAT are fulfilled, i.e. using a qualified electronic signature or through electronic data interchange.

Reception of invoices by standard format (pdf) or email is not accepted.

Price revision

Price revision is not applicable to this FWC.

                      Ir

Payments and guarantees

Date of payment

Payments are deemed to be effected on the date when they are debited to the contracting authority’s account.

Currency

Payments are made in euros or in the currency provided for in Article I.7.

Costs of transfer

The costs of the transfer are borne as follows:

  1. the contracting authority bears the costs of dispatch charged by its bank;
  2. the contractor bears the costs of receipt charged by its bank;
  3. the party causing repetition of the transfer bears the costs for repeated transfer.

Pre-financing, performance and money retention guarantees

Pre-financing, performance and money retention guarantees are not applicable to this FWC.

Interim payments and payment of the balance

Interim payments and payment of the balance are not applicable to this FWC.

Suspension of the time allowed for payment

The contracting authority may suspend the payment periods specified in Article I.6 at any time by notifying the contractor (or leader in the case of a joint tender) that its invoice cannot be processed. The reasons the contracting authority may cite for not being able to process an invoice are:

  1. because it does not comply with the FWC;
  2. because the contractor has not produced the appropriate documents or deliverables; or
  3. because the contracting authority has observations on the documents or deliverables submitted with the invoice.

The contracting authority must notify the contractor (or leader in the case of joint tender) as soon as possible of any such suspension, giving the reasons for it.

Suspension takes effect on the date the contracting authority sends the notification. The remaining payment period resumes from the date on which the requested information or revised documents are received or the necessary further verification, including on-the-spot checks, is carried out. Where the suspension period exceeds two months, the contractor (or leader in the case of a joint tender) may request the contracting authority to justify the continued suspension.

Where the payment periods have been suspended following rejection of a document referred to in the first paragraph of this Article and the new document produced is also rejected, the contracting authority reserves the right to terminate the specific contract in accordance with Article II.18.1(c).

Interest on late payment

Suspension of the payment period as provided for in Article II.21.7 is not considered as giving rise to late payment.

Interest on late payment covers the period running from the day following the due date for payment up to and including the date of payment as defined in Article II.21.1.

However, when the calculated interest is EUR 200 or less, it must be paid to the contractor (or leader in the case of a joint tender) only if it requests it within two months of receiving late payment.

Reimbursements

Reimbursement of expenses is not applicable to this FWC.

Recovery

II.23.1   If an amount is to be recovered under the terms of the FWC, the contractor must repay the contracting authority the amount in question.

      1. Recovery procedure

Before recovery, the contracting authority must formally notify the contractor of its intention to recover the amount it claims, specifying the amount due and the reasons for recovery and inviting the contractor to make any observations within 30 days of receipt.

If no observations have been submitted or if, despite the observations submitted, the contracting authority decides to pursue the recovery procedure, it must confirm recovery by formally notifying a debit note to the contractor, specifying the date of payment. The contractor must pay in accordance with the provisions specified in the debit note.

If the contractor does not pay by the due date, the contracting authority may, after informing the contractor in writing, recover the amounts due:

  1. by offsetting them against any amounts owed to the contractor by the Union
  2. by calling in a financial guarantee if the contractor has submitted one to the contracting authority;
  3. by taking legal action.

Interest on late payment

If the contractor does not honour the obligation to pay the amount due by the date set by the contracting authority in the debit note, the amount due bears interest at the rate indicated in Article II.21.8. Interest on late payments will cover the period starting on the day after the due date for payment and ending on the date when the contracting authority receives the full amount owed.

Any partial payment is first entered against charges and interest on late payment and then against the principal amount.

Recovery rules in the case of joint tender

If the contract is signed by a group (joint tender), the group is jointly and severally liable under the conditions set out in Article II.6 (liability). The contracting authority first claims the full amount to the leader of the group.

If the leader does not pay by the due date and if the amount cannot be offset in accordance with Article II.23.2 (a), the contracting authority may claim the full amount to any other member of the group by notifying the debit note already sent to the leader under Article II.23.2.

Checks and audits

Checks and audits are not applicable to this FWC.

 

 

III.    MODEL ORDER FORM

 

 

 

 

 

 

   

 

 

FRAMEWORK CONTRACT

 

MODEL ORDER FORM

 

Delegation of the European Union to the Republic of Botswana

 

 

Order number: 

(Name and address of contractor)

  

 

 

Currency of payment:   BWP

 

 

Tel.:

 

 

Tender (date and reference):

 

 

E-mail: Delegation-Botswana@

eeas.europa.eu

 

 

 

 

 

This order is governed by Framework Contract No EEAS-XXX- DELBWA-SER-FWC-2020   in force from __________ to ___________

  

LISTING OF THE SUPPLIES / SERVICES

UNIT

QUANTITY

PRICE in BWP

 

and code

 

 

UNIT PRICE

TOTAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Pursuant to the provisions of Headquarters Agreement applicable to the European Union Delegation or the Vienna Convention of 18 April 1961 on diplomatic relations][other agreement, the EU is exempt from all taxes and dues, including value added tax, on payments due in respect of this contract.

 

 

 

 

 

[Packaging]

 

 

 

 

[Insurance]

 

 

 

 

[Transport]

 

 

 

 

[Assembly]

 

 

 

 

VAT

 

 

 

 

TOTAL:

 

 

 

 

Place of delivery or performance and/or Incoterm:

Contractor’s signature

 

Final date of delivery or performance:

 

 

 

Payment provisions:

 

 

Name:

 

 

 

 

 

 

Position:

 

 

[Guarantee:]

 

 

 

Date:

 

 

 

 

Date of issue:

 

 

 

 

 

 

 

Signature [name and position]:

 

 

 

   

The invoice will be paid only if the contractor has returned the signed order form.

 

 

 

HEADING

 

 

SERVICE FRAMEWORK CONTRACT

NUMBER — EEAS-XXX- DELBWA-SER-FWC-2020

1. The [European Union (‘the Union’), represented by the European Union Delegation to Botswana and SADC (‘the contracting authority’), represented for the purposes of signing this framework contract by Mr Jan Sadek, Head of Delegation,

of the one part and

2. [Full official name]

[Official legal form ] [7]

[Statutory registration number][8]

[Full official address]

[VAT registration number]

(‘the contractor’), represented for the purpose of the signature of this framework contract by [forename, surname, function of legal representative and name of company in the case of a joint tender],

on the other part,

 

 

 

HAVE AGREED

 

to the special conditions, the general conditions for framework contracts for services and the following annexes:

Annex I –         Tender specifications (reference No [complete] of [insert date])

Annex II –        Contractor’s tender (reference No [complete] of [insert date])

Annex III –      Model for order form

which form an integral part of this framework contract (‘the FWC’).

This FWC sets out:

  1. the procedure by which the contracting authority may order services from the contractor;
  2. the provisions that apply to any specific contract which the contracting authority and the contractor may conclude under this FWC; and
  3. the obligations of the parties during and after the duration of this FWC.

All documents issued by the contractor (end-user agreements, general terms and conditions, etc.) except its tender are held inapplicable, unless explicitly mentioned in the special conditions of this FWC. In all circumstances, in the event of contradiction between this FWC and documents issued by the contractor, this FWC prevails, regardless of any provision to the contrary in the contractor’s documents.

 

 

 

 

Special Conditions

    1. Order of priority of provisions

If there is any conflict between different provisions in this FWC, the following rules must be applied:

  1. The provisions set out in the special conditions take precedence over those in the other parts of the FWC.
  2. The provisions set out in the general conditions take precedence over those in the order form and specific contract (Annex III)
  3. The provisions set out in the order form and specific contract (Annex III) take precedence over those in the other annexes.
  4. The provisions set out in the tender specifications (Annex I) take precedence over those in the tender (Annex II).
  5. The provisions set out in the FWC take precedence over those in the specific contracts.

Any reference to specific contracts applies also to order forms.

    1. Subject matter

The subject matter of the FWC is [short description of subject].

    1. Entry into force and duration of the FWC

I.3.1    The FWC enters into force [on the date on which the last party signs it].

I.3.2    The implementation of the FWC cannot start before its entry into force.

I.3.3    The FWC is concluded for a period of xx months with effect from the date of its entry into force.

I.3.4    The parties must sign any specific contract before the FWC expires.

The FWC continues to apply to such specific contracts after its expiry. The services relating to such specific contracts must be performed no later than six months after the expiry of the FWC.

    1. Type and implementation of the FWC
      1. Type of the contract

The contracting authority awards a single FWC.

      1. Period of provision of the services

The period for the provision of the services starts to run from the date on which the specific contract is signed by the last party.

      1. Implementation of single FWC

The contracting authority orders services by sending the contractor a specific contract in paper format

Within five working days, the contractor must either:

- send the specific contract back to the contracting authority signed and dated; or

- send an explanation of why it cannot accept the order.

If the contractor repeatedly refuses to sign the specific contracts or repeatedly fails to send them back on time, the contractor may be considered in breach of its obligations under this FWC as set out in Article II.18.1 (c).

    1. Prices
      1. Maximum amount of the FWC and maximum prices

The maximum amount covering all services under this FWC is BWP  (amount in figures and in words). However, this does not bind the contracting authority to purchase for the maximum amount.

The maximum prices of the services are as listed in Annex II.

      1. Price revision index

Price revision index is not applicable to this FWC.

      1. Reimbursement of expenses

Reimbursement of expenses is not applicable to this FWC.

    1. Payment arrangements
      1. Pre-financing

Pre-financing is not applicable to this FWC.

      1. Interim payment

Interim payment is not applicable to this FWC.

      1. Payment of the balance

Balance payment is not applicable to this FWC.

      1. Performance guarantee

        Performance guarantee is not applicable to this FWC.

      1. Retention money guarantee

      Retention money guarantee is not applicable to this FWC.

    1. Bank account

Payments must be made to the contractor’s bank account denominated in BWP, identified as follows:

Name of bank:

Full address of branch:

Exact denomination of account holder:

Full account number including bank codes:

IBAN code:

    1. Communication details

For the purpose of this FWC, communications must be sent to the following addresses:

Contracting authority:

European Union Delegation to Botswana and SADC

Robinson Road, Plot 758

Postbox 1253, Gaborone

Email: Delegation-Botswana@eeas.europa.eu

 

٭٭٭

Contractor:

[Full name]

[Function]

[Company name]

[Full official address]

E-mail: [complete]

By derogation from this Article, different contact details for the contracting authority or the contractor may be provided in specific contracts.

    1. Processing of personal data
      1. Processing of personal data by the contracting authority

For the purpose of Article II.9.1,

  1. the data controller is the Head of the Delegation of the European Union to The Republic of Botswana and SADC.
  2. the data protection notice is available at:

https://eeas.europa.eu/sites/eeas/files/procurement_-_privacy_statement.pdf.

      1. Processing of personal data by the contractor

This clause is not applicable to this FWC.

    1. Exploitation of the results of the FWC

This clause is not applicable to this FWC.

      1. Detailed list of modes of exploitation of the results

In accordance with Article II.13.1 whereby the Union acquires ownership of the results as defined in this FWC, including the tender specifications, these results may be used for any of the following modes of exploitation:

[a)        use for its own purposes

      1. Licence or transfer of pre-existing rights

All pre-existing rights incorporated in the results, if any, are licensed to the Union as set out in Article II.13.2.

      1. Provision of list of pre-existing rights and documentary evidence

The contractor must provide the contracting authority with a list of pre-existing rights as set Termination by either party

    1. Applicable law and settlement of disputes

I.12.1  The FWC is governed by Union law, complemented, where necessary, by the law of The Republic of Botswana.

I.12.2  The courts of The Republic of Botswana have exclusive jurisdiction over any dispute regarding the interpretation, application or validity of the FWC.

I.13.1  This FWC is interinstitutional. The lead contracting authority acts on its own behalf and on behalf of the bodies listed in the title of the FWC as the contracting authorities, which provided the lead contracting authority with a power of attorney before FWC signature. The lead contracting authority signs the FWC and any amendments on behalf of itself and of all other contracting authorities.

I.13.2  Each contracting authority is responsible for the particular specific contracts it awards.

I.13.3  If the contractor has a complaint about the conclusion, performance or termination of a specific contract, the contractor remains bound by its obligations under the FWC and other specific contracts.

 

SIGNATURES

For the contractor,

[Company name/forename/surname/position]

 

Signature: _______________________

Done at [place], [date]

For the contracting authority,

[forename/surname/position]

 

Signature:_____________________

Done at [place], [date]

In duplicate in English.

 

  1. GENERAL CONDITIONS FOR THE FRAMEWORK CONTRACT FOR SERVICES
    1. Definitions

For the purpose of this FWC, the following definitions (indicated in italics in the text) apply:

‘Back office’: the internal system(s) used by the parties to process electronic invoices;

‘Confidential information or document’: any information or document received by either party from the other or accessed by either party in the context of the implementation of the FWC, that any of the parties has identified in writing as confidential. It may not include information that is publicly available;

‘Conflict of interest’: a situation where the impartial and objective implementation of the FWC by the contractor is compromised for reasons involving family, emotional life, political or national affinity, economic interest, or any other shared interest with the contracting authority or any third party related to the subject matter of the FWC;

‘Creator’: means any natural person who contributes to the production of the result;

‘EDI message’ (electronic data interchange): a message created and exchanged through the electronic transfer, from computer to computer, of commercial and administrative data using an agreed standard;

‘e-PRIOR’: the service-oriented communication platform that provides a series of web services and allows the exchange of standardised electronic messages and documents between the parties. This is done either through web services, with a machine-to-machine connection between the parties’ back office systems (EDI messages), or through a web application (the supplier portal). The Platform may be used to exchange electronic documents (e-documents) such as electronic requests for services, electronic specific contracts, electronic acceptance of services and electronic invoices between the parties. Technical specifications (i.e. the interface control document), details on access and user manuals are available at the following website: http://ec.europa.eu/dgs/informatics/supplier_portal/documentation/documentation_en.htm

‘Force majeure’: any unforeseeable, exceptional situation or event beyond the control of the parties that prevents either of them from fulfilling any of their obligations under the FWC. The situation or event must not be attributable to error or negligence on the part of the parties or on the part of the subcontractors and must prove to be inevitable despite their exercising due diligence. Defaults of service, defects in equipment or material or delays in making them available, labour disputes, strikes and financial difficulties may not be invoked as force majeure, unless they stem directly from a relevant case of force majeure;

‘Formal notification’ (or ‘formally notify’): form of communication between the parties made in writing by mail or email, which provides the sender with compelling evidence that the message was delivered to the specified recipient;

‘Fraud’: any intentional act or omission affecting the Union’s financial interests relating to the use or presentation of false, incorrect or incomplete statements or documents or to non-disclosure of information in violation of a specific obligation;

‘Implementation of the FWC’: the purchase of services envisaged in the FWC through the signature and performance of specific contracts;

‘Interface control document’: the guideline document which lays down the technical specifications, message standards, security standards, checks of syntax and semantics, etc. to facilitate machine-to-machine connection. This document is updated on a regular basis;

‘Irregularity’: any infringement of a provision of Union law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the Union’s budget.

‘Notification’ (or ‘notify’): form of communication between the parties made in writing including by electronic means;

‘Order form’: a simplified form of specific contract by which the contracting authority orders services under this FWC;

‘Performance of a specific contract’: the execution of tasks and delivery of the purchased services by the contractor to the contracting authority;

‘Personnel’: persons employed directly or indirectly or contracted by the contractor to implement the FWC;

‘Pre-existing material’: any material, document, technology or know-how which exists prior to the contractor using it for the production of a result in the implementation of the FWC;

‘Pre-existing right’: any industrial and intellectual property right on pre-existing material; it may consist in a right of ownership, a licence right and/or right of use belonging to the contractor, the creator, the contracting authority as well as to any other third parties;

‘Professional conflicting interest’: a situation in which the contractor’s previous or ongoing professional activities affect its capacity to implement the FWC or to perform a specific contract to an appropriate quality standard.

‘Related person’: any person who has the power to represent the contractor or to take decisions on its behalf;

‘Request for services’: a document from the contracting authority requesting that the contractors in a multiple FWC provide a specific tender for services whose terms are not entirely defined under the FWC;

‘Result’: any intended outcome of the implementation of the FWC, whatever its form or nature, which is delivered and finally or partially approved by the contracting authority. A result may be further defined in this FWC as a deliverable. A result may, in addition to materials produced by the contractor or at its request, also include pre-existing materials;

‘Specific contract’: a contract implementing the FWC and specifying details of a service to be provided;

‘Substantial error’: any infringement of a contract provision resulting from an act or omission, which causes or might cause a loss to the Union’s budget.

‘Supplier portal’: the e-PRIOR portal, which allows the contractor to exchange electronic business documents, such as invoices, through a graphical user interface; its main features can be found in the supplier portal overview document available on: http://ec.europa.eu/dgs/informatics/supplier_portal/doc/um_supplier_portal_overview.pdf

    1. Roles and responsibilities in the event of a joint tender

In the event of a joint tender submitted by a group of economic operators and where the group does not have legal personality or legal capacity, one member of the group is appointed as leader of the group.

    1. Severability

Each provision of this FWC is severable and distinct from the others. If a provision is or becomes illegal, invalid or unenforceable to any extent, it must be severed from the remainder of the FWC. This does not affect the legality, validity or enforceability of any other provisions of the FWC, which continue in full force and effect. The illegal, invalid or unenforceable provision must be replaced by a legal, valid and enforceable substitute provision which corresponds as closely as possible with the actual intent of the parties under the illegal, invalid or unenforceable provision. The replacement of such a provision must be made in accordance with Article II.11. The FWC must be interpreted as if it had contained the substitute provision as from its entry into force.

    1. Provision of services

II.4.1               Signature of the FWC does not guarantee any actual purchase. The contracting authority is bound only by specific contracts implementing the FWC.

II.4.2   The contractor must provide services of high quality standards, in accordance with the state of the art in the industry and the provisions of this FWC, in particular the tender specifications and the terms of its tender.

II.4.3   The contractor must comply with the minimum requirements provided for in the tender specifications. This includes compliance with applicable obligations under environmental, social and labour law established by Union law, national law and collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU[9], compliance with data protection obligations resulting from Regulation (EU) 2016/679[10] and Regulation (EU) 2018/1725[11].

II.4.4   The contractor must obtain any permit or licence required in the State where the services are to be provided.

II.4.5   All periods specified in the FWC are calculated in calendar days, unless otherwise specified.

II.4.6   The contractor must not present itself as a representative of the contracting authority and must inform third parties that it is not part of the European public service.

II.4.7   The contractor is responsible for the personnel who carry out the services and exercises its authority over its personnel without interference by the contracting authority. The contractor must inform its personnel that:

  1. they may not accept any direct instructions from the contracting authority; and
  2. their participation in providing the services does not result in any employment or contractual relationship with the contracting authority.

II.4.8   The contractor must ensure that the personnel implementing the FWC and any future replacement personnel possess the professional qualifications and experience required to provide the services, as the case may be on the basis of the selection criteria set out in the tender specifications.

II.4.9   At the contracting authority’s reasoned request, the contractor must replace any member of personnel who:

  1. does not have the expertise required to provide the services; or
  2. has caused disruption at the premises of the contracting authority.

The contractor bears the cost of replacing its personnel and is responsible for any delay in providing the services resulting from the replacement of personnel.

II.4.10 The contractor must record and report to the contracting authority any problem that affects its ability to provide the services. The report must describe the problem, state when it started and what action the contractor is taking to resolve it.

    1. Communication between the parties
      1. Form and means of communication

Any communication of information, notices or documents under the FWC must:

  1. be made in writing in paper or electronic format in the language of the contract;
  2. bear the FWC number and, if applicable, the specific contract number;
  3. be made using the relevant communication details set out in Article I.8; and
  4. be sent by mail, email or, for the documents specified in the special conditions, via e-PRIOR.

If a party requests written confirmation of an e-mail within a reasonable time, the other party must provide an original signed paper version of the communication as soon as possible.

The parties agree that any communication made by email has full legal effect and is admissible as evidence in judicial proceedings.

      1. Date of communications by mail and email

Any communication is deemed to have been made when the receiving party receives it, unless this FWC contract refers to the date when the communication was sent.

E-mail is deemed to have been received by the receiving party on the day of dispatch of that e-mail, provided that it is sent to the e-mail address indicated in Article I.8. The sending party must be able to prove the date of dispatch. In the event that the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the communication by email or mail. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline.

Mail sent to the contracting authority is deemed to have been received by the contracting authority on the date on which the department responsible referred to in Article I.8 registers it.

Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message was delivered to the specified recipient.

      1. Submission of e-documents via e-PRIOR
  1. If provided for in the special conditions, the exchange of electronic documents (e-documents) such as requests for services, specific contracts and invoices between the parties is automated through the use of the e-PRIOR platform. This platform provides two possibilities for such exchanges: either through web services (machine-to-machine connection) or through a web application (the supplier portal).
  2. The contracting authority takes the necessary measures to implement and maintain electronic systems that enable the supplier portal to be used effectively.
  3. In the case of machine-to-machine connection, a direct connection is established between the parties’ back offices. In this case, the parties take the measures necessary on their side to implement and maintain electronic systems that enable the machine-to-machine connection to be used effectively. The electronic systems are specified in the interface control document. The contractor (or leader in the case of a joint tender) must take the necessary technical measures to set up a machine-to-machine connection and at its own cost.
  4. If communication via the supplier portal or via the web services (machine-to-machine connection) is hindered by factors beyond the control of one party, it must notify the other immediately and the parties must take the necessary measures to restore this communication.
  5. If it is impossible to restore the communication within two working days, one party must notify the other that alternative means of communication specified in Article II.5.1 will be used until the supplier portal or the machine-to-machine connection is restored.
  6. When a change in the interface control document requires adaptations, the contractor (or leader in the case of a joint tender) has up to six months from receipt of the notification to implement this change. This period can be shortened by mutual agreement of the parties. This period does not apply to urgent measures required by the security policy of the contracting authority to ensure integrity, confidentiality and non-repudiation of information and the availability of e-PRIOR, which must be applied immediately.
      1. Validity and date of e-documents
  1. The parties agree that any e-document, including related attachments exchanged via e-PRIOR:
  1. is considered as equivalent to a paper document;
  2. is deemed to be the original of the document;
  3. is legally binding on the parties once an e-PRIOR authorised person has performed the ‘sign’ action in e-PRIOR and has full legal effect; and
  4. constitutes evidence of the information contained in it and is admissible as evidence in judicial proceedings.
  1. The parties expressly waive any rights to contest the validity of such a document solely on the grounds that communications between the parties occurred through e-PRIOR or that the document has been signed through e-PRIOR. If a direct connection is established between the parties’ back offices to allow electronic transfer of documents, the parties agree that an e-document, sent as mentioned in the interface control document, qualifies as an EDI message.
  2. If the e-document is dispatched through the supplier portal, it is deemed to have been legally issued or sent when the contractor (or leader in the case of a joint tender) is able to successfully submit the e-document without any error messages. The generated PDF and XML document for the e-document are considered as a proof of receipt by the contracting authority.
  3. In the event that an e-document is dispatched using a direct connection established between the parties’ back offices, the e-document is deemed to have been legally issued or sent when its status is ‘received’ as defined in the interface control document.
  4. When using the supplier portal, the contractor (or leader in the case of a joint tender) can download the PDF or XML message for each e-document for one year after submission. After this period, copies of the e-documents are no longer available for automatic download from the supplier portal.
      1.  Authorised persons in e-PRIOR

The contractor submits a request for each person who needs to be assigned the role of ‘user’ in e-PRIOR. These persons are identified by means of the European Communication Authentication Service (ECAS) and authorised to access and perform actions in e-PRIOR within the permissions of the user roles that the contracting authority has assigned to them.

User roles enabling these e-PRIOR authorised persons to sign legally binding documents such as specific tenders or specific contracts are granted only upon submission of supporting documents proving that the authorised person is empowered to act as a legal representative of the contractor.

    1. Liability

II.6.1   The contracting authority is not liable for any damage or loss caused by the contractor, including any damage or loss to third parties during or as a consequence of implementation of the FWC.

II.6.2   If required by the relevant applicable legislation, the contractor must take out an insurance policy against risks and damage or loss relating to the implementation of the FWC. It must also take out supplementary insurance as reasonably required by standard practice in the industry. Upon request, the contractor must provide evidence of insurance coverage to the contracting authority.

II.6.3   The contractor is liable for any loss or damage caused to the contracting authority during or as a consequence of implementation of the FWC, including in the event of subcontracting, but only up to an amount not exceeding three times the total amount of the relevant specific contract. However, if the damage or loss is caused by the gross negligence or wilful misconduct of the contractor or of its personnel or subcontractors, the contractor is liable for the whole amount of the damage or loss.

II.6.4   If a third party brings any action against the contracting authority in connection with the implementation of the FWC, including any action for alleged breach of intellectual property rights, the contractor must assist the contracting authority in the legal proceedings, including by intervening in support of the contracting authority upon request.
If the contracting authority’s liability towards the third party is established and that such liability is caused by the contractor during or as a consequence of the implementation of the FWC, Article II.6.3 applies.

II.6.5   If the contractor is composed of two or more economic operators (i.e. who submitted a joint tender), they are all jointly and severally liable to the contracting authority for the implementation of the FWC.

II.6.6   The contracting authority is not liable for any loss or damage caused to the contractor during or as a consequence of implementation of the FWC, unless the loss or damage was caused by wilful misconduct or gross negligence of the contracting authority.

    1. Conflict of interest and professional conflicting interests

II.7.1   The contractor must take all the necessary measures to prevent any situation of conflict of interest or professional conflicting interest.

II.7.2   The contractor must notify the contracting authority in writing as soon as possible of any situation that could constitute a conflict of interest or a professional conflicting interest during the implementation of the FWC. The contractor must immediately take action to rectify the situation.

The contracting authority may do any of the following:

  1. verify that the contractor’s action is appropriate;
  2. require the contractor to take further action within a specified deadline;
  3. decide not to award a specific contract to the contractor.

II.7.3   The contractor must pass on all the relevant obligations in writing to:

  1. its personnel;
  2.  any natural person with the power to represent it or take decisions on its behalf;
  3. third parties involved in the implementation of the FWC, including subcontractors.

The contractor must also ensure that the persons referred to above are not placed in a situation which could give rise to conflicts of interest.

    1. Confidentiality

II.8.1.  The contracting authority and the contractor must treat with confidentiality any information or documents, in any format, disclosed in writing or orally, relating to the implementation of the FWC and identified in writing as confidential.

II.8.2.  Each party must:

(a)   not use confidential information or documents for any purpose other than to perform its obligations under the FWC or a specific contract without the prior written agreement of the other party;

(b)   ensure the protection of such confidential information or documents with the same level of protection as its own confidential information or documents and in any case with due diligence;

(c)   not disclose, directly or indirectly, confidential information or documents to third parties without the prior written agreement of the other party.

II.8.3   The confidentiality obligations set out in this Article are binding on the contracting authority and the contractor during the implementation of the FWC and for as long as the information or documents remain confidential unless:

(a)   the disclosing party agrees to release the receiving party from the confidentiality obligation earlier;

(b)   the confidential information or documents become public through other means than a breach of the confidentiality obligation;

(c)   the applicable law requires the disclosure of the confidential information or documents.

II.8.4   The contractor must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the implementation of the FWC a commitment that they will comply with this Article. At the request of the contracting authority, the contractor must provide a document providing evidence of this commitment.

    1. Processing of personal data

II.9.1   Processing of personal data by the contracting authority

Any personal data included in or relating to the FWC, including its implementation, shall be processed in accordance with Regulation (EU) 2018/1725. Such data shall be processed solely for the purposes of the implementation, management and monitoring of the FWC by the data controller.

 

The contractor or any other person whose personal data is processed by the data controller in relation to this FWC has specific rights as a data subject under Chapter III (Articles 14-25) of Regulation (EU) 2018/1725, in particular the right to access, rectify or erase their personal data and the right to restrict or, where applicable, the right to object to processing or the right to data portability.

 

Should the contractor or any other person whose personal data is processed in relation to this FWC have any queries concerning the processing of its personal data, it shall address itself to the data controller. They may also address themselves to the Data Protection Officer of the data controller. They have the right to lodge a complaint at any time to the European Data Protection Supervisor.

 

Details concerning the processing of personal data are available in the data protection notice referred to in Article I.9.

II.9.2   Processing of personal data by the contractor

The processing of personal data by the contractor shall meet the requirements of Regulation (EU) 2018/1725 and be processed solely for the purposes set out by the controller.

The contractor shall assist the controller for the fulfilment of the controller’s obligation to respond to requests for exercising rights of person whose personal data is processed in relation to this FWC as laid down in Chapter III (Articles 14-25) of Regulation (EU) 2018/1725. The contractor shall inform without delay the controller about such requests.

The contractor may act only on documented written instructions and under the supervision of the controller, in particular with regard to the purposes of the processing, the categories of data that may be processed, the recipients of the data and the means by which the data subject may exercise its rights.

The contractor shall grant personnel access to the data to the extent strictly necessary for the implementation, management and monitoring of the FWC. The contractor must ensure that personnel authorised to process personal data has committed itself to confidentiality or is under appropriate statutory obligation of confidentiality in accordance with the provisions of Article II.8.

 

The contractor shall adopt appropriate technical and organisational security measures, giving due regard to the risks inherent in the processing and to the nature, scope, context and purposes of processing, in order to ensure, in particular, as appropriate:

 

  1. the pseudonymisation and encryption of personal data;
  2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
  4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;
  5. measures to protect personal data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to personal data transmitted, stored or otherwise processed.

The contractor shall notify relevant personal data breaches to the controller without undue delay and at the latest within 48 hours after the contractor becomes aware of the breach. In such cases, the contractor shall provide the controller with at least the following information:

 

  1. nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
  2. likely consequences of the breach;
  3. measures taken or proposed to be taken to address the breach, including, where appropriate, measures to mitigate its possible adverse effects.

The contractor shall immediately inform the data controller if, in its opinion, an instruction infringes Regulation (EU) 2018/1725, Regulation (EU) 2016/679, or other Union or Member State data protection provisions as referred to in the tender specifications.

The contractor shall assist the controller for the fulfilment of its obligations pursuant to Article 33 to 41 under Regulation (EU) 2018/1725 to:

  1. ensure compliance with its data protection obligations regarding the security of the processing, and  the confidentiality of electronic communications and directories of users;
  2. notify a personal data breach to the European Data Protection Supervisor;
  3. communicate a personal data breach without undue delay to the data subject, where applicable;
  4. carry out data protection impact assessments and prior consultations as necessary.

The contractor shall maintain a record of all data processing operations carried on behalf of the controller, transfers of personal data, security breaches, responses to requests for exercising rights of people whose personal data is processed and requests for access to personal data by third parties.

The contracting authority is subject to Protocol 7 of the Treaty on the Functioning of the European Union on the privileges and immunities of the European Union, particularly as regards the inviolability of archives (including the physical location of data and services as set out in Article I.9.2) and data security, which includes personal data held on behalf of the contracting authority in the premises of the contractor or subcontractor.

The contractor shall notify the contracting authority without delay of any legally binding request for disclosure of the personal data processed on behalf of the contracting authority made by any national public authority, including an authority from a third country. The contractor may not give such access without the prior written authorisation of the contracting authority.

The duration of processing of personal data by the contractor will not exceed the period referred to in Article II.24.2. Upon expiry of this period, the contractor shall, at the choice of the controller, return, without any undue delay in a commonly agreed format, all personal data processed on behalf of the controller and the copies thereof or shall effectively delete all personal data unless Union or national law requires a longer storage of personal data.

For the purpose of Article II.10, if part or all of the processing of personal data is subcontracted to a third party, the contractor shall pass on the obligations referred to in Articles I.9.2 and II.9.2 in writing to those parties, including subcontractors. At the request of the contracting authority, the contractor shall provide a document providing evidence of this commitment.

    1. Subcontracting

II.10.1   The contractor must not subcontract and have the FWC implemented by third parties beyond the third parties already mentioned in its tender without prior written authorisation from the contracting authority.

II.10.2   Even if the contracting authority authorises subcontracting, the contractor remains bound by its contractual obligations and is solely responsible for the implementation of the FWC.

II.10.3   The contractor must ensure that the subcontract does not affect the rights of the contracting authority under this FWC, particularly those under Articles II.8, II.13 and II.24.

II.10.4   The contracting authority may request the contractor to replace a subcontractor found to be in a situation provided for in points (d) and (e) of Article II.18.1.

    1. Amendments

II.11.1   Any amendment to the FWC or a specific contract must be made in writing before all contractual obligations have been fulfilled. A specific contract does not constitute an amendment to the FWC.

II.11.2   Any amendment must not make changes to the FWC or a specific contract that might alter the initial conditions of the procurement procedure or result in unequal treatment of tenderers or contractors.

    1. Assignment

II.12.1   The contractor must not assign any of the rights and obligations arising from the FWC, including claims for payments or factoring, without prior written authorisation from the contracting authority. In such cases, the contractor must provide the contracting authority with the identity of the intended assignee.

II.12.2   Any right or obligation assigned by the contractor without authorisation is not enforceable against the contracting authority.

    1. Intellectual property rights
      1. Ownership of the rights in the results

The Union acquires irrevocably worldwide ownership of the results and of all intellectual property rights under the FWC. The intellectual property rights so acquired include any rights, such as copyright and other intellectual or industrial property rights, to any of the results and to all technological solutions and information created or produced by the contractor or by its subcontractor in implementation of the FWC. The contracting authority may exploit and use the acquired rights as stipulated in this FWC. The Union acquires all the rights from the moment the contracting authority approves the results delivered by the contractor. Such delivery and approval are deemed to constitute an effective assignment of rights from the contractor to the Union.

The payment of the price includes any fees payable to the contractor about the acquisition of ownership of rights by the Union including for all forms of exploitation and of use of the results.

      1. Licensing rights on pre-existing materials

Unless provided otherwise in the special conditions, the Union does not acquire ownership of pre-existing rights under this FWC.

The contractor licenses the pre-existing rights on a royalty-free, non-exclusive and irrevocable basis to the Union, which may use the pre-existing materials for all the modes of exploitation set out in this FWC or in specific contracts. All pre-existing rights are licensed to the Union from the moment the results are delivered and approved by the contracting authority.

The licensing of pre-existing rights to the Union under this FWC covers all territories worldwide and is valid for the duration of intellectual property rights protection.

The payment of the price as set out in the specific contracts is deemed to also include any fees payable to the contractor in relation to the licensing of pre-existing rights to the Union, including for all forms of exploitation and of use of the results.

Where implementation of the FWC requires that the contractor uses pre-existing materials belonging to the contracting authority, the contracting authority may request that the contractor signs an adequate licence agreement. Such use by the contractor will not entail any transfer of rights to the contractor and is limited to the needs of this FWC.

      1. Exclusive rights

The Union acquires the following exclusive rights:

  1. reproduction: the right to authorise or prohibit direct or indirect, temporary or permanent reproduction of the results by any means (mechanical, digital or other) and in any form, in whole or in part;
  2. communication to the public: the exclusive right to authorise or prohibit any display, performance or communication to the public, by wire or wireless means, including the making available to the public of the results in such a way that members of the public may access them from a place and at a time individually chosen by them; this right also includes the communication and broadcasting by cable or by satellite;
  3. distribution: the exclusive right to authorise or prohibit any form of distribution of results or copies of the results to the public, by sale or otherwise;
  4. rental: the exclusive right to authorise or prohibit rental or lending of the results or of copies of the results;
  5. adaptation: the exclusive right to authorise or prohibit any modification of the results;
  6. translation: the exclusive right to authorise or prohibit any translation, adaptation, arrangement, creation of derivative works based on the results, and any other alteration of the results, subject to the respect of moral rights of authors, where applicable;
  7. where the results are or include a database: the exclusive right to authorise or prohibit the extraction of all or a substantial part of the contents of the database to another medium by any means or in any form; and the exclusive right to authorise or prohibit the re-utilization of all or a substantial part of the contents of the database by the distribution of copies, by renting, by on-line or other forms of transmission;
  8. where the results are or include a patentable subject-matter: the right to register them as a patent and to further exploit such patent to the fullest extent;
  1. where the results are or include logos or subject-matter which could be registered as a trademark: the right to register such logo or subject-matter as a trademark and to further exploit and use it;
  1. where the results are or include know-how: the right to use such know-how as is necessary to make use of the results to the full extent provided for by this FWC, and the right to make it available to contractors or subcontractors acting on behalf of the contracting authority, subject to their signing of adequate confidentiality undertakings where necessary;
  1. where the results are documents:
            1. the right to authorise the reuse of the documents in conformity with the Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU), to the extent it is applicable and the documents fall within its scope and are not excluded by any of its provisions; for the sake of this provision, ‘reuse’ and ‘document’ have the meaning given to it by this Decision;
            2. the right to store and archive the results in line with the document management rules applicable to the contracting authority, including digitisation or converting the format for preservation or new use purposes;
  1. where the results are or incorporate software, including source code, object code and, where relevant, documentation, preparatory materials and manuals, in addition to the other rights mentioned in this Article:
            1. end-user rights, for all uses by the Union or by subcontractors acting on behalf of the Union which result from this FWC and from the intention of the parties;
            2. the rights to decompile or disassemble the software;
  2. to the extent that the contractor may invoke moral rights, the right for the contracting authority, except where otherwise provided in this FWC, to publish the results with or without mentioning the creator(s)’ name(s), and the right to decide when and whether the results may be disclosed and published.

The contractor warrants that the exclusive rights and the modes of exploitation may be exercised by the Union on all parts of the results, be they created by the contractor or consisting of pre-existing materials.

Where pre-existing materials are inserted in the results, the contracting authority may accept reasonable restrictions impacting on the above list, provided that the said materials are easily identifiable and separable from the rest, that they do not correspond to substantial elements of the results, and that, should the need arise, satisfactory replacement solutions exist, at no additional costs to the contracting authority. In such case, the contractor will have to clearly inform the contracting authority before making such choice and the contracting authority has the right to refuse it.

      1. Identification of pre-existing rights

When delivering the results, the contractor must warrant that, for any use that the contracting authority may envisage within the limits set in this FWC, the results and the pre-existing material incorporated in the results are free of claims from creators or from any third parties and all the necessary pre-existing rights have been obtained or licensed.

To that effect, the contractor must establish a list of all pre-existing rights to the results of this FWC or parts thereof, including identification of the rights’ owners. If there are no pre-existing rights to the results, the contractor must provide a declaration to that effect. The contractor must provide this list or declaration to the contracting authority together with the invoice for payment of the balance at the latest.

      1.             Evidence of granting of pre-existing rights

Upon request by the contracting authority, the contractor must provide evidence that it has the ownership or the right to use all the listed pre-existing rights, except for the rights owned or licensed by the Union. The contracting authority may request this evidence even after the end of this FWC.

This evidence may refer, for example, to rights to: parts of other documents, images, graphs, fonts, tables, data, software, technical inventions, know-how, IT development tools, routines, subroutines or other programs (‘background technology’), concepts, designs, installations or pieces of art, data, source or background materials or any other parts of external origin.

This evidence must include, as appropriate:

  1. the name and version number of a software product;
  2. the full identification of the work and its author, developer, creator, translator, data entry person, graphic designer, publisher, editor, photographer, producer;
  3. a copy of the licence to use the product or of the agreement granting the relevant rights to the contractor or a reference to this licence;
  4. a copy of the agreement or extract from the employment contract granting the relevant rights to the contractor where parts of the results were created by its personnel;
  5. the text of the disclaimer notice if any.

Provision of evidence does not release the contractor from its responsibilities if it is found that it does not hold the necessary rights, regardless of when and by whom this fact is revealed.

The contractor also warrants that it possesses the relevant rights or powers to execute the transfer and that it has paid or has verified payment of all due fees including fees due to collecting societies, related to the final results.

      1. Quotation of works in the result

In the result, the contractor must clearly point out all quotations of existing works. The complete reference should include as appropriate, the following: name of the author, title of the work, date and place of publication, date of creation, address of publication on the internet, number, volume and other information that allows the origin to be easily identified.

      1. Moral rights of creators

By delivering the results, the contractor warrants that the creators will not object to the following on the basis of their moral rights under copyright:

  1. that their names be mentioned or not mentioned when the results are presented to the public;
  2. that the results be divulged or not after they have been delivered in their final version to the contracting authority;
  3. that the results be adapted, provided that this is done in a manner which is not prejudicial to the creator’s honour or reputation.

If moral rights on parts of the results protected by copyright may exist, the contractor must obtain the consent of creators regarding the granting or waiver of the relevant moral rights in accordance with the applicable legal provisions and be ready to provide documentary evidence upon request.

      1. Image rights and sound recordings

If natural persons appear in a result or their voice or any other private element is recorded in a recognisable manner, the contractor must obtain a statement by these persons (or, in the case of minors, by the persons exercising parental authority) giving their permission for the described use of their image, voice or private element and, on request, submit a copy of the permission to the contracting authority. The contractor must take the necessary measures to obtain such consent in accordance with the applicable legal provisions.

      1. Copyright notice for pre-existing rights

When the contractor retains pre-existing rights on parts of the results, reference must be inserted to that effect when the result is used as set out in Article I.10.1, with the following disclaimer: ‘© — year — European Union. All rights reserved. Certain parts are licensed under conditions to the EU’, or with any other equivalent disclaimer as the contracting authority may consider best appropriate, or as the parties may agree on a case-by-case basis. This does not apply where inserting such reference would be impossible, notably for practical reasons.

      1. Visibility of Union funding and disclaimer

When making use of the results, the contractor must declare that they have been produced under a contract with the Union and that the opinions expressed are those of the contractor only and do not represent the contracting authority’s official position. The contracting authority may waive this obligation in writing or provide the text of the disclaimer.

    1. Force majeure

II.14.1   If a party is affected by force majeure, it must immediately notify the other party, stating the nature of the circumstances, their likely duration and foreseeable effects.

II.14.2   A party is not liable for any delay or failure to perform its obligations under the FWC if that delay or failure is a result of force majeure. If the contractor is unable to fulfil its contractual obligations owing to force majeure, it has the right to remuneration only for the services actually provided.

II.14.3   The parties must take all necessary measures to limit any damage due to force majeure.

    • Liquidated damages
      1.  Delay in delivery

If the contractor fails to perform its contractual obligations within the applicable time limits set out in this FWC, the contracting authority may claim liquidated damages for each day of delay using the following formula:

0.3 x (V/d)

where:

V is the price of the relevant purchase or deliverable or result;

d is the duration specified in the relevant specific contract for delivery of the relevant purchase or deliverable or result or, failing that, the period between the date specified in Article I.4.2 and the date of delivery or performance specified in the relevant specific contract, expressed in days.

Liquidated damages may be imposed together with a reduction in price under the conditions laid down in Article II.16.

      1. Procedure

The contracting authority must formally notify the contractor of its intention to apply liquidated damages and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to apply liquidated damages; or

(b) of its final decision to apply liquidated damages and the corresponding amount.

      1. Nature of liquidated damages

The parties expressly acknowledge and agree that any amount payable under this Article is not a penalty and represents a reasonable estimate of fair compensation for the damage incurred due to failure to provide the services within the applicable time limits set out in this FWC.

      1. Claims and liability

Any claim for liquidated damages does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

    1. Reduction in price
      1. Quality standards

If the contractor fails to provide the service in accordance with the FWC or a specific contract (‘unperformed obligations’) or if it fails to provide the service in accordance with the expected quality levels specified in the tender specifications (‘low quality delivery’), the contracting authority may reduce or recover payments proportionally to the seriousness of the unperformed obligations or low quality delivery. This includes in particular cases where the contracting authority cannot approve a result, report or deliverable as defined in Article I.6 after the contractor has submitted the required additional information, correction or new version.

A reduction in price may be imposed together with liquidated damages under the conditions of Article II.15.

      1. Procedure

The contracting authority must formally notify the contractor of its intention to reduce payment and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to reduce payment; or

(b) of its final decision to reduce payment and the corresponding amount,.

      1. Claims and liability

Any reduction in price does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.18.

    1. Suspension of the implementation of the FWC
      1. Suspension by the contractor

If the contractor is affected by force majeure, it may suspend the provision of the services under a specific contract.

The contractor must immediately notify the contracting authority of the suspension. The notification must include a description of the force majeure and state when the contractor expects to resume the provision of services.

The contractor must notify the contracting authority as soon as it is able to resume performance of the specific contract, unless the contracting authority has already terminated the FWC or the specific contract.

      1. Suspension by the contracting authority

The contracting authority may suspend the implementation of the FWC or performance of a specific contract or any part of it:

(a)   if the procedure for awarding the FWC or a specific contract or the implementation of the FWC proves to have been subject to substantial errors, irregularities or fraud;

(b)   in order to verify whether the presumed substantial errors, irregularities or fraud actually occurred.

The contracting authority must formally notify the contractor of the suspension. Suspension takes effect on the date of formal notification, or at a later date if the formal notification so provides.

The contracting authority must notify the contractor as soon as possible whether:

  1. it is lifting the suspension; or
  2. it intends to terminate the FWC or a specific contract under Article II.18.1(f) or (j).

The contractor is not entitled to compensation for suspension of any part of the FWC or a specific contract.

    1. Termination of the FWC
      1. Grounds for termination by the contracting authority

The contracting authority may terminate the FWC or a specific contract in the following circumstances:

  • if provision of the services under a pending specific contract has not actually started within 15 days of the scheduled date and the contracting authority considers the new date proposed, if any, unacceptable, taking into account Article II.11.2;
  • if the contractor is unable, through its own fault, to obtain any permit or licence required for implementation of the FWC;
  • if the contractor does not implement the FWC or perform the specific contract in accordance with the tender specifications or request for service or is in breach of another substantial contractual obligation or repeatedly refuses to sign specific contracts. Termination of three or more specific contracts in these circumstances also constitutes grounds for termination of the FWC;
  • if the contractor or any person that assumes unlimited liability for the debts of the contractor is in one of the situations provided for in points (a) and (b) of Article 136(1) of the Financial Regulation[12];
  • if the contractor or any related person is subject to any of the situations provided for in points (c) to (f) of Article 136(1) or to Article 136(2) of the Financial Regulation.
  • if the procedure for awarding the FWC or the implementation of the FWC prove to have been subject to substantial errors, irregularities or fraud;
  • if the contractor does not comply with applicable obligations under environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU;
  1. if the contractor is in a situation that could constitute a conflict of interest or a professional conflicting interest as referred to in Article II.7;
  1. if a change to the contractor’s legal, financial, technical, organisational or ownership situation is likely to substantially affect the implementation of the FWC or substantially modify the conditions under which the FWC was initially awarded;
  1. in the event of force majeure, where either resuming implementation is impossible or the necessary ensuing amendments to the FWC or a specific contract would mean that the tender specifications are no longer fulfilled or result in unequal treatment of tenderers or contractors;
  1. if the needs of the contracting authority change and it no longer requires new services under the FWC; in such cases ongoing specific contracts remain unaffected;
  2. if the termination of the FWC with one or more of the contractors means that the multiple FWC with reopening of competition no longer has the minimum required level of competition;
  3. if the contractor is in breach of the data protection obligations resulting from Article II.9.2;
  4. if the contractor does not comply with the applicable data protection obligations resulting from Regulation (EU) 2016/679.
      1. Grounds for termination by the contractor

The contractor may terminate the FWC or a specific contract if:

  1. it has evidence that the contracting authority has committed substantial errors, irregularities or fraud in the procedure for awarding the FWC or the implementation of the FWC;
  2. the contracting authority fails to comply with its obligations, in particular the obligation to provide the information needed for the contractor to implement the FWC or to perform a specific contract as provided for in the tender specifications.
      1. Procedure for termination

A party must formally notify the other party of its intention to terminate the FWC or a specific contract and the grounds for termination.

The other party has 30 days following the date of receipt to submit observations, including the measures it has taken to continue fulfilling its contractual obligations. Failing that, the decision to terminate becomes enforceable the day after the time limit for submitting observations has elapsed.

If the other party submits observations, the party intending to terminate must formally notify it either of the withdrawal of its intention to terminate or of its final decision to terminate.

In the cases referred to in points (a) to (d), (g) to (i), (k) and (l) of Article II.18.1 and in Article II.18.2, the date on which the termination takes effect must be specified in the formal notification.

In the cases referred to in points (e), (f) and (j) of Article II.18.1, the termination takes effect on the day following the date on which the contractor receives notification of termination.

In addition, at the request of the contracting authority and regardless of the grounds for termination, the contractor must provide all necessary assistance, including information, documents and files, to allow the contracting authority to complete, continue or transfer the services to a new contractor or internally, without interruption or adverse effect on the quality or continuity of the services. The parties may agree to draw up a transition plan detailing the contractor’s assistance unless such plan is already detailed in other contractual documents or in the tender specifications. The contractor must provide such assistance at no additional cost, except if it can demonstrate that it requires substantial additional resources or means, in which case it must provide an estimate of the costs involved and the parties will negotiate an arrangement in good faith.

      1. Effects of termination

The contractor is liable for damage incurred by the contracting authority as a result of the termination of the FWC or a specific contract including the cost of appointing another contractor to provide or complete the services, unless the damage was caused by the situation specified in Article II.18.1(j), (k) or (l) or in Article II.18.2. The contracting authority may claim compensation for such damage.

The contractor is not entitled to compensation for any loss resulting from the termination of the FWC or a specific contract, including loss of anticipated profits, unless the loss was caused by the situation specified in Article II.18.2.

The contractor must take all appropriate measures to minimise costs, prevent damage and cancel or reduce its commitments.

Within 60 days of the date of termination, the contractor must submit any report, deliverable or result and any invoice required for services that were provided before the date of termination.

In the case of joint tenders, the contracting authority may terminate the FWC or a specific contract with each member of the group separately  on the basis of points (d), (e) or (g) of Article II.18.1, under the conditions set out in Article II.11.2

    1. Invoices, value added tax and e-invoicing
      1. Invoices and value added tax

Invoices must contain the contractor’s (or leader’s in the case of a joint tender) identification data, the amount, the currency and the date, as well as the FWC reference and reference to the specific contract.

Invoices must indicate the place of taxation of the contractor (or leader in the case of a joint tender) for value added tax (VAT) purposes and must specify separately amounts not including VAT and amounts including VAT.

The contracting authority is exempt from all taxes and duties, including VAT, in accordance with Articles 3 and 4 of the Protocol on the privileges and immunities of the European Union.

Unless otherwise stated in the tender specifications, in the specific contract or in the order form, the contracting authority is exempt from all taxes, duties and other charges, including VAT, in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961 and the particular Headquarters' agreements concluded between the host state and the European Union institution, which grant an exemption equivalent to that stated in the Vienna Convention.

The contractor (or leader in the case of a joint tender) must complete the necessary formalities with the relevant authorities to ensure that the supplies and services required for implementation of the FWC are exempt from taxes and duties, including VAT.

      1. E-invoicing

If provided for in the special conditions, the contractor (or leader in the case of a joint tender) submits invoices in electronic format if the conditions regarding electronic signature specified by Directive 2006/112/EC on VAT are fulfilled, i.e. using a qualified electronic signature or through electronic data interchange.

Reception of invoices by standard format (pdf) or email is not accepted.

    1. Price revision

Price revision is not applicable to this FWC.

                      Ir

    1. Payments and guarantees
      1. Date of payment

Payments are deemed to be effected on the date when they are debited to the contracting authority’s account.

      1. Currency

Payments are made in euros or in the currency provided for in Article I.7.

      1. Costs of transfer

The costs of the transfer are borne as follows:

  1. the contracting authority bears the costs of dispatch charged by its bank;
  2. the contractor bears the costs of receipt charged by its bank;
  3. the party causing repetition of the transfer bears the costs for repeated transfer.
      1. Pre-financing, performance and money retention guarantees

Pre-financing, performance and money retention guarantees are not applicable to this FWC.

      1. Interim payments and payment of the balance

Interim payments and payment of the balance are not applicable to this FWC.

      1. Suspension of the time allowed for payment

The contracting authority may suspend the payment periods specified in Article I.6 at any time by notifying the contractor (or leader in the case of a joint tender) that its invoice cannot be processed. The reasons the contracting authority may cite for not being able to process an invoice are:

  1. because it does not comply with the FWC;
  2. because the contractor has not produced the appropriate documents or deliverables; or
  3. because the contracting authority has observations on the documents or deliverables submitted with the invoice.

The contracting authority must notify the contractor (or leader in the case of joint tender) as soon as possible of any such suspension, giving the reasons for it.

Suspension takes effect on the date the contracting authority sends the notification. The remaining payment period resumes from the date on which the requested information or revised documents are received or the necessary further verification, including on-the-spot checks, is carried out. Where the suspension period exceeds two months, the contractor (or leader in the case of a joint tender) may request the contracting authority to justify the continued suspension.

Where the payment periods have been suspended following rejection of a document referred to in the first paragraph of this Article and the new document produced is also rejected, the contracting authority reserves the right to terminate the specific contract in accordance with Article II.18.1(c).

      1. Interest on late payment

Suspension of the payment period as provided for in Article II.21.7 is not considered as giving rise to late payment.

Interest on late payment covers the period running from the day following the due date for payment up to and including the date of payment as defined in Article II.21.1.

However, when the calculated interest is EUR 200 or less, it must be paid to the contractor (or leader in the case of a joint tender) only if it requests it within two months of receiving late payment.

    1. Reimbursements

Reimbursement of expenses is not applicable to this FWC.

    1. Recovery

II.23.1   If an amount is to be recovered under the terms of the FWC, the contractor must repay the contracting authority the amount in question.

      1. Recovery procedure

Before recovery, the contracting authority must formally notify the contractor of its intention to recover the amount it claims, specifying the amount due and the reasons for recovery and inviting the contractor to make any observations within 30 days of receipt.

If no observations have been submitted or if, despite the observations submitted, the contracting authority decides to pursue the recovery procedure, it must confirm recovery by formally notifying a debit note to the contractor, specifying the date of payment. The contractor must pay in accordance with the provisions specified in the debit note.

If the contractor does not pay by the due date, the contracting authority may, after informing the contractor in writing, recover the amounts due:

  1. by offsetting them against any amounts owed to the contractor by the Union
  2. by calling in a financial guarantee if the contractor has submitted one to the contracting authority;
  3. by taking legal action.
      1. Interest on late payment

If the contractor does not honour the obligation to pay the amount due by the date set by the contracting authority in the debit note, the amount due bears interest at the rate indicated in Article II.21.8. Interest on late payments will cover the period starting on the day after the due date for payment and ending on the date when the contracting authority receives the full amount owed.

Any partial payment is first entered against charges and interest on late payment and then against the principal amount.

      1. Recovery rules in the case of joint tender

If the contract is signed by a group (joint tender), the group is jointly and severally liable under the conditions set out in Article II.6 (liability). The contracting authority first claims the full amount to the leader of the group.

If the leader does not pay by the due date and if the amount cannot be offset in accordance with Article II.23.2 (a), the contracting authority may claim the full amount to any other member of the group by notifying the debit note already sent to the leader under Article II.23.2.

    1. Checks and audits

Checks and audits are not applicable to this FWC.

 

 

III.    MODEL ORDER FORM

   

 

 

FRAMEWORK CONTRACT

 

MODEL ORDER FORM

 

Delegation of the European Union to the Republic of Botswana

 

 

Order number: 

(Name and address of contractor)

  

 

 

Currency of payment:   BWP

 

 

Tel.:

 

 

Tender (date and reference):

 

 

E-mail: Delegation-Botswana@

eeas.europa.eu

 

 

 

 

 

This order is governed by Framework Contract No EEAS-XXX- DELBWA-SER-FWC-2020   in force from __________ to ___________

  

LISTING OF THE SUPPLIES / SERVICES

UNIT

QUANTITY

PRICE in BWP

 

and code

 

 

UNIT PRICE

TOTAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Pursuant to the provisions of Headquarters Agreement applicable to the European Union Delegation or the Vienna Convention of 18 April 1961 on diplomatic relations][other agreement, the EU is exempt from all taxes and dues, including value added tax, on payments due in respect of this contract.

 

 

 

 

 

[Packaging]

 

 

 

 

[Insurance]

 

 

 

 

[Transport]

 

 

 

 

[Assembly]

 

 

 

 

VAT

 

 

 

 

TOTAL:

 

 

 

 

Place of delivery or performance and/or Incoterm:

Contractor’s signature

 

Final date of delivery or performance:

 

 

 

Payment provisions:

 

 

Name:

 

 

 

 

 

 

Position:

 

 

[Guarantee:]

 

 

 

Date:

 

 

 

 

Date of issue:

 

 

 

 

 

 

 

Signature [name and position]:

 

 

 

   

The invoice will be paid only if the contractor has returned the signed order form.

 

 

 

TENDER SPECIFICATIONS

No EEAS-DELBWA-04/01/2020-SER-FWC PAINTING SERVICES

Services Framework Contract

NEGOTIATED PROCEDURE

  1. Introduction

The contracting authority is the European Union (hereinafter referred to as "contracting authority"), represented by the Head the Delegation of the European Union in The Republic of Botswana or its duly authorized representative.

These tender specifications and the tender submitted by the awardee of the contract will be annexed to the contract and therefore be binding on the contracting parties during the implementation of the contract.

In addition, the instructions as stipulated in the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" (available at the following link: https://eeas.europa.eu/headquarters/headquarters-homepage/8989_en are applicable to this tender unless otherwise mentioned in these tender specifications.

  1. subject of the contract
  • The contractor must provide the human and material resources necessary to provide the service in the non‑exhaustive list below:
  • proper preparation of all surfaces to be painted;
  • complete painting of external walls of each house as per schedule;
  • complete painting of boundary wall as per schedule
  • cracks and holes in the wall and surfaces will be spackled and sanded smooth
  •  

The place of performance is mainly staff houses all located within an approximate 10km radius of the Delegation offices.

  1. joint tender

The provisions are detailed in the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" as mentioned under point 1 above.

  1. eligibility of economic operators
    1. Access to public procurement

In addition to the provisions at point 4.1 of the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts", this tender is also exceptionally open on equal terms to all natural and legal persons in The Republic of Botswana.

    1. Non-exclusion and selection of economic operators

Tenderers shall provide a declaration on exclusion and selection criteria attached to these tender specifications dully filled in, signed and dated by the legally authorised representative.

The declaration on exclusion and selection criteria shall be provided by each member of the group in case of joint tenders.

All the tenderers shall provide with their tenders the documents mentioned as supporting documents on selection criteria in the declaration on their honour and in the "Tender form" annexed to these tender specifications.

The tenderers shall meet the selection criteria listed here below.

      1. Legal and regulatory capacity criteria
  1. Authorisation to provide the services at the place of performance of the contract.

Minimum capacity level required:

The tenderer shall be authorised to provide the services being subject to this contract at the place of performance of this contract. The relevant certificate must be valid on the date of the deadline for the submission of requests to participate.

Supporting document(s)/evidence requested:

  1. Evidence on enrolment in a relevant professional or trade register, except for international organisations.
  •  
  1. Evidence of professional and liability risk indemnity insurance valid for the execution of services foreseen in the present contract notice in The Republic of Botswana.

Before the signature of the contract, the validity of the certificate may be verified again.

      1. Economic and financial capacity criteria
  1. Turnover

Minimum capacity level required:

  1. The average annual turnover for the last two financial years for which accounts have been closed.

Supporting document(s)/evidence requested:

Profit and loss accounts (Income statement) for the last two financial years for which accounts have been closed.

 

      1. Technical and professional capacity criteria
  1. Previous contracts

Minimum capacity level(s) required:

1. At least three contracts in the fields related to the painting services indicated in point 2 during the last three calendar years.

Supporting document(s)/evidence requested:

In order to meet the minimum capacity level(s) required mentioned above, the tenderer must present a list of references and/or client's reference letters relevant to the painting service contracts performed during the past three calendar years.

The criterion is applied to:

  1. Evaluation of tenders on the basis of the award criteria

The technically compliant tenders are evaluated in order to award the contract to the tender offering the lowest price. In other words, the contract is awarded to the tender that satisfies the requirements set in the technical specifications and offers the lowest price.

    1. Technical compliance

The technical compliance will be evaluated based on the "Table of compliance with the requirements in the procurement documents" (refer to the "Tender form"). The tenderers shall return the table duly completed, dated and signed.

    1. Financial tender

Only the financial tenders submitted by those tenderers who have submitted technically compliant tenders as indicated above will be considered for the award.

The prices for the tender must be tendered:

  • in BWP;
  • free of all duties, taxes and other charges, including VAT, as the European Union is exempt from such charges under the Vienna Convention;
  • all inclusive. This means that, unless otherwise mentioned in these tender specifications, prices tendered for shall include all the costs to be incurred by the tenderers to fully implement the contract;
  • using the unit price schedule (Annex A).
  1. Content of the tender

The tenderer shall duly complete and sign the "Tender form" annexed to these tender specifications and submit all the documents requested in it.

The contracting authority reserves the right to decide whether to request or not any missing documents not provided by the tenderers.

  1. Annexes

Annex I: Technical specifications

Annex II:            Tender form

  • Section 1:            Presentation of the tenderer
  • Section 2:            Legal entity form and Financial Identification Form
  • Section 3:            Declaration on honour on exclusion and selection criteria
  • Section 4:            Evidence on selection criteria
  • Section 5 :          Technical tender – Table of compliance with the requirements in the procurement documents
  • Section 6 :           Financial tender

 Annexes Annex I Technical specifications

The contracting authority intends to procure the provision of painting services to be rendered to the EU Delegation.  All the requirements in the following technical specifications are considered to be minimum requirements and therefore not subject to the negotiation, if any, unless specified for any particular aspects.

  1. Scope of Work

The following services are required:

  • proper preparation of all surfaces to be painted;
  • complete painting of external walls of each house as per schedule;
  • complete painting of boundary wall as per schedule
  • cracks and holes in the wall and surfaces will be spackled and sanded smooth.
  1. Equipment and materials

Equipment and material will be supplied by the contractor.

  • All equipment and material must comply with the standards laid down in the standards of the The Republic of Botswana.
  • Wall paint shall be of high, durable quality and of a well-known brand.

 

  1. Specific Requirements

 

  1. General Workmanship

 

  • All surfaces to be painted shall be dry and cleaned, free of all dirt, grit, grease, mould, mildew or any other foreign substance.
  • A primer or undercoat will be used before painting if and where required.
  • All work shall be done in a neat and clean manner.
  • Each coat of paint shall be evenly worked out and allowed to dry according to the manufacturer's recommendations before subsequent coats are applied.
  • The finishing coat or coats of paint shall be off white in colour. The contractor shall not change the colour of the paint unless authorised to do so by the Contracting Authority in writing.
  • The finished work shall be free from runs, sags, defective brushing or stippling and clogging of lines and angles of the trim.
  • It shall be understood that the number of coats of material recommended by the manufacturer specifies a minimum. Taking into consideration that even material of high quality, mere applications of the stated number of coats will not assure acceptance unless the workmanship and quality of work is approved by the Contracting Authority.
  • The thinning of good, high quality material for additional coverage and the use of poor materials and the adulteration with inferior substitute materials is not permitted.  A full bodied finish of the paint surface is required under this contract regardless of the number of coats necessary to get the accomplished result.
  • All surfaces shall be left clean at completion of the job.
  • Drop cloths shall be used and kept clean at all times.
  • Windows and floor shall be carefully handled and kept free of paint and spatters.
  1. Conduct of Operations
  • The Contractor shall conduct the requested works in a cooperative manner with the Contracting Authority and shall interfere as little as possible with the normal operations and functioning of the Residence and the tenants of the properties.
  • Most of the living quarters will be vacant at the time the painting is done.  Whether these spaces are occupied or not, the work of the Contractor is to be pursued diligently to the end and each area is to be finished at the earliest possible moment after standing. Work shall be done in areas as directed by the Contracting Authority so that any inconvenience is kept to a minimum.
  1. Protection
  • The Contractor shall protect floors and other finished surfaces from damage during the execution of the work.
  • The Contractor shall be responsible for any damage to other work. Any materials which in the opinion of the Contracting Authority have become damaged to such an extent that they cannot be restored to their original condition shall be replaced at the Contractor's expense.
  • Work not to be finished and/or under this contract shall be protected against paint spatter, stain or soiling.
  1. Touch up

At completion of the works specified, all paintwork shall be touched up and restored where damaged, defaced or defective and the entire work left free from blemishes.

  1. Cleaning

The Contractor shall clean all paint spots, oil and stains from floors, woodwork, glass, hardware, tile, metal work and all similar items and leave the site clean upon completion.

  1. Staff

Staff must have

  • no criminal record;
  • a polite, professional and punctual behaviour;
  • a very good sense of organisation, planning and time-keeping.
  1. Warranty

The tenderer must indicate the warrantee on the works.

 Annex II Tender form

Section 1

Presentation of the tenderer

EEAS-DELBWA………-SER-FWC 2020 PAINTING SERVICES

 

Official name of legal entity

State of the headquarters (legal persons) or of the domicile (natural persons) of the legal entity

Main registration number

Leader

 

 

 

Member

 

 

 

[insert as many rows as necessary]

 

 

 

 

CONTACT PERSON FOR THIS TENDER

Name

 

Position

 

Address

 

e-mail

 

 

 

Name(s) and signature(s) of the legal representative(s) of the tenderer*:

*in case of joint tender, the form shall be signed by the legal representative of each member of the group as indicated above under "Tenderer".

 

Stamp, date and place

Section 2

Legal entity form

 

Please submit a signed Legal Entity Form with its supporting evidence. The form is attached and available at

http://ec.europa.eu/budget/contracts_grants/info_contracts/legal_entities/legal_entities_en.cfm .

When the tenderer is a legal person, a legible copy of the notice of appointment of the persons authorised to represent the tenderer in dealings with third parties and in legal proceedings, or a copy of the publication of such appointment if the legislation which applies to the legal entity concerned requires such publication. Any delegation of this authorisation to another representative not indicated in the official appointment must be evidenced. When the tenderer is a natural person, a proof of registration on a professional or trade register or any other official document showing the registration number. The legally constituted consortium must present its own Legal Entity Form which is different from the Legal Entity Form of each individual member of the group;

 

Financial identification form

Please submit a signed financial identification form and its supporting evidence. The form is attached and available at

http://ec.europa.eu/budget/contracts_grants/info_contracts/financial_id/financial_id_en.cfm, (bank account file - BAF). Even in case of joint tenders, one form must be submitted;

 

 

 

Section 3

Declaration on honour on exclusion criteria and selection criteria

The undersigned ……………………….... [name of the signatory of this form], representing:

(only if the candidate is a natural person) himself or herself

(only if the candidate is a legal person) the following legal person:

 

ID or passport number:

 

(‘the person’)

Full official name:

Official legal form:

Statutory registration number:

Full official address:

VAT registration number:

 

(‘the person’)

 

The person is not required to submit the declaration on exclusion criteria if the same declaration has already been submitted for the purposes of another award procedure of the same contracting authority, provided the situation has not changed, and that the time that has elapsed since the issuing date of the declaration does not exceed one year.

In this case, the signatory declares that the person has already provided the same declaration on exclusion criteria for a previous procedure and confirms that there has been no change in its situation:

Date of the declaration

Full reference to previous procedure

 

 

 

I – Situation of exclusion concerning the person

  1.  declares that the above-mentioned person is in one of the following situations:

YES

NO

  1. it is bankrupt, subject to insolvency or winding-up procedures, its assets are being administered by a liquidator or by a court, it is in an arrangement with creditors, its business activities are suspended or it is in any analogous situation arising from a similar procedure provided for under Union or national law;

 

 

  1. it has been established by a final judgement or a final administrative decision that the person is in breach of its obligations relating to the payment of taxes or social security contributions in accordance with the applicable law;

 

  1. it has been established by a final judgement or a final administrative decision that the person is guilty of grave professional misconduct by having violated applicable laws or regulations or ethical standards of the profession to which the person belongs, or by having engaged in any wrongful conduct which has an impact on its professional credibity where such conduct denotes wrongful intent or gross negligence, including, in particular, any of the following:

 

(i) fraudulently or negligently misrepresenting information required for the verification of the absence of grounds for exclusion or the fulfilment of eligibility selection criteria or in the performance of a contract or an agreement;

 

 

(ii) entering into agreement with other persons with the aim of distorting competition;

 

 

(iii) violating intellectual property rights;

 

 

(iv) attempting to influence the decision-making process of the contracting authority during the award procedure;

 

 

(v) attempting to obtain confidential information that may confer upon it undue advantages in the award procedure;

 

 

  1. it has been established by a final judgement that the person is guilty of the following:

 

(i) fraud, within the meaning of Article 3 of Directive (EU) 2017/1371 and Article 1 of the Convention on the protection of the European Communities' financial interests, drawn up by the Council Act of 26 July 1995;

 

 

(ii) corruption, as defined in Article 4(2) of Directive (EU) 2017/1371 or active corruption within the meaning of Article 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, drawn up by the Council Act of 26 May 1997, or conduct referred to in Article 2(1) of Council Framework Decision 2003/568/JHA, as well as corruption as defined in the other applicable laws;

 

 

(iii) conduct related to a criminal organisation, as referred to in Article 2 of Council Framework Decision 2008/841/JHA;

 

 

(iv) money laundering or terrorist financing, within the meaning of Article 1(3), (4) and (5) of Directive (EU) 2015/849 of the European Parliament and of the Council;

 

 

(v) terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Council Framework Decision 2002/475/JHA, respectively, or inciting, aiding, abetting or attempting to commit such offences, as referred to in Article 4 of that Decision;

 

 

(vi) child labour or other offences concerning trafficking in human beings as referred to in Article 2 of Directive 2011/36/EU of the European Parliament and of the Council;

 

 

  1. it has shown significant deficiencies in complying with the main obligations in the performance of a contract or an agreement financed by the Union’s budget, which has led to its early termination or to the application of liquidated damages or other contractual penalties, or which has been discovered following checks, audits or investigations by a contracting authority, the European Anti-Fraud Office (OLAF) or the Court of Auditors;

 

 

  1. it has been established by a final judgment or final administrative decision that the person has committed an irregularity within the meaning of Article 1(2) of Council Regulation (EC, Euratom) No 2988/95;

 

 

  1. it has been established by a final judgment or final administrative decision that the person has created an entity under a different jurisdiction with the intent to circumvent fiscal, social or any other legal obligations in the jurisdiction of its registered office, central administration or principal place of business.

 

 

  1. (only for legal persons) it has been established by a final judgment or final administrative decision that the person has been created with the intent provided for in point (g).

 

 

  1. for the situations referred to in points (c) to (h) above the person is subject to:
  1. facts established in the context of audits or investigations carried out by the European Public Prosecutor's Office after its establishment, the Court of Auditors, the European Anti-Fraud Office (OLAF) or the internal auditor, or any other check, audit or control performed under the responsibility of an authorising officer of an EU institution, of a European office or of an EU agency or body;
  2. non-final judgements or non-final administrative decisions which may include disciplinary measures taken by the competent supervisory body responsible for the verification of the application of standards of professional ethics;
  3.  facts referred to in decisions of entities or persons being entrusted with EU budget implementation tasks;
  4. information transmitted by Member States implementing Union funds;
  5. decisions of the Commission relating to the infringement of Union competition law or of a national competent authority relating to the infringement of Union or national competition law; or
  6. decisions of exclusion by an authorising officer of an EU institution, of a European office or of an EU agency or body.

 

 

II – SITUATIONS OF EXCLUSION CONCERNING NATURAL OR LEGAL PERSONS WITH POWER OF REPRESENTATION, DECISION-MAKING OR CONTROL OVER THE LEGAL PERSON AND BENEFICIAL OWNERS

Not applicable to natural persons, Member States and local authorities

  1. declares that a natural or legal person who is a member of the administrative, management or supervisory body of the above-mentioned legal person, or who has powers of representation, decision or control with regard to the above-mentioned legal person (this covers e.g. company directors, members of management or supervisory bodies, and cases where one natural or legal person holds a majority of shares), or a beneficial owner of the person (as referred to in point 6 of article 3 of Directive (EU) No 2015/849) is in one of the following situations:

YES

NO

N/A

Situation (c) above (grave professional misconduct)

 

 

 

Situation (d) above (fraud, corruption or other criminal offence)

 

 

 

Situation (e) above (significant deficiencies in performance of a contract )

 

 

 

Situation (f) above (irregularity)

 

 

 

Situation (g) above (creation of an entity with the intent to circumvent legal obligations)

 

 

 

Situation (h) above (person created with the intent to circumvent legal obligations)

 

 

 

Situation (i) above

 

 

 

 

III – SITUATIONS OF EXCLUSION CONCERNING NATURAL OR LEGAL PERSONS ASSUMING UNLIMITED LIABILITY FOR THE DEBTS OF THE LEGAL PERSON

  1.  declares that a natural or legal person that assumes unlimited liability for the debts of the above-mentioned legal person is in one of the following situations:

YES

NO

N/A

Situation (a) above (bankruptcy)

 

 

 

Situation (b) above (breach in payment of taxes or social security contributions)

 

 

 

 

IV – GROUNDS FOR REJECTION FROM THIS PROCEDURE

(4) declares that the above-mentioned person:

YES

NO

Was previously involved in the preparation of the procurement documents used in this award procedure, where this entailed a breach of the principle of equality of treatment including distortion of competition that cannot be remedied otherwise.

 

 

 

V – REMEDIAL MEASURES

If the person declares one of the situations of exclusion listed above, it must indicate measures it has taken to remedy the exclusion situation, thus demonstrating its reliability. This may include e.g. technical, organisational and personnel measures to prevent further occurrence, compensation of damage or payment of fines or of any taxes or social security contributions. The relevant documentary evidence which illustrates the remedial measures taken must be provided in annex to this declaration. This does not apply for situations referred in point (d) of this declaration.

VI – EVIDENCE UPON REQUEST

Upon request and within the time limit set by the contracting authority the person must provide information on natural or legal persons that are members of the administrative, management or supervisory body or that have powers of representation, decision or control, including legal and natural persons within the ownership and control structure and beneficial owners.

It must also provide the following evidence concerning the person itself and the natural or legal persons on whose capacity the person intends to rely, or a subcontractor and concerning the natural or legal persons which assume unlimited liability for the debts of the person:

For situations described in (a), (c), (d), (f), (g) and (h), production of a recent extract from the judicial record is required or, failing that, an equivalent document recently issued by a judicial or administrative authority in the country of establishment of the person showing that those requirements are satisfied.

For the situation described in point (b), production of recent certificates issued by the competent authorities of the State concerned are required. These documents must provide evidence covering all taxes and social security contributions for which the person is liable, including for example, VAT, income tax (natural persons only), company tax (legal persons only) and social security contributions. Where any document described above is not issued in the country concerned, it may be replaced by a sworn statement made before a judicial authority or notary or, failing that, a solemn statement made before an administrative authority or a qualified professional body in its country of establishment.

The person is not required to submit the evidence if it has already been submitted for another award procedure of the same contracting authority. The documents must have been issued no more than one year before the date of their request by the contracting authority and must still be valid at that date.

The signatory declares that the person has already provided the documentary evidence for a previous procedure and confirms that there has been no change in its situation:

Document

Full reference to previous procedure

Insert as many lines as necessary.

 

 

VII – SELECTION CRITERIA

  1. declares that the above-mentioned person complies with the selection criteria applicable to it individually as provided in the tender specifications:

YES

NO

N/A

  1. It has the legal and regulatory capacity to pursue the professional activity needed for performing the contract as required in section 5.2.1 of the tender specifications;

 

 

 

  1. It fulfills the applicable economic and financial criteria indicated in section 5.2.2 of the tender specifications;

 

 

 

  1. It fulfills the applicable technical and professional criteria indicated in section 5.2.3 of the tender specifications.

 

 

 

 

 

  1.  if the above-mentioned person is the sole tenderer or the leader in case of joint tender, declares that:

YES

NO

N/A

  1. the tenderer, including all members of the group in case of joint tender and including subcontractors if applicable, complies with all the selection criteria for which a consolidated asseessment will be made as provided in the tender specifications.

 

 

 

     

 

VIII – EVIDENCE FOR SELECTION

The signatory declares that the above-mentioned person is able to provide the necessary supporting documents listed in the relevant sections of the tender specifications and which are not available electronically upon request and without delay.

The person is not required to submit the evidence if it has already been submitted for another procurement procedure of the same contracting authority. The documents must have been issued no more than one year before the date of their request by the contracting authority and must still be valid at that date.

The signatory declares that the person has already provided the documentary evidence for a previous procedure and confirms that there has been no change in its situation:

Document

Full reference to previous procedure

Insert as many lines as necessary.

 

 

The above-mentioned person must immediately inform the contracting authority of any changes in the situations as declared.

 

The above-mentioned person may be subject to rejection from this procedure and to administrative sanctions (exclusion or financial penalty) if any of the declarations or information provided as a condition for participating in this procedure prove to be false.

 

Full name                                                                                Date                                                                   Signature

 

 

 

 

 

Section 4

Evidence on selection criteria

If the supporting documents on the selection criteria are requested (see point 5.2 of the tender specifications), the tenderers shall complete the forms and/or submit the supporting documents listed here below.

Legal and regulatory capacity criteria

a)    Evidence on enrolment in a relevant professional or trade register, except for international organisations

 

  1. Evidence of professional and liability risk indemnity insurance valid for the execution of services foreseen in the present contract notice in The Republic of Botswana.

 

Economic and financial capacity criteria

a)    Income statements (Profit and Loss Statement) for the last two financial years for which accounts have been closed.

Technical and professional capacity criteria

a)      List of references and / or clients' reference letters in the fields related to the painting service contracts performed during the past three calendar years indicated in point 2 specifying whether the contract has been carried out in a professional manner in compliance with the contractual terms.

 

 

The following annexes shall be completed by the tenderer and send as part of its tender. The annexes shall be completed with tenderer's replies. The tenderers shall insert in the form itself the specific references to all the documents included in its tender.

Section 5

Technical tender

Table of compliance with the requirements in the procurement documents

EEAS-DELBWA………-SER-FWC 2020  PAINTING SERVICES

requirement

Yes / No

Tenderer's reply and or comments

Will there be proper preparation of all surfaces to be painted prior to painting?  (Surfaces must be dry, cleaned and free of all dirt, grit, grease, mould, mildew or any other foreign substance)

 

 

Will the primer to be used if and where required be of a high, durable quality?  (Specify in comments)

 

 

Will all cracks and holes in the wall be filled with spackle and sanded smooth prior to painting the surface?

 

 

Does all equipment and material comply with Botswana standards? 

 

 

Is off white wall paint quoted on of a high, durable quality and of a well-known brand?  (Specify the brand in the comments)

 

 

Will drop cloths be put down on areas where painting takes place?

 

 

At completion will painted work be touched up and restored where damaged, defaced or defective and left free from blemishes?

 

 

Does the tenderer have the necessary professional and experienced staff to perform the contract?

 

 

Specify the warranty on the paint works:

 

 

Are all documents mentioned in the Selection Criteria (under point 4.2.1 – 4.2.3) included in your tender?

 

 

 

 

I, .................... , the undersigned, being the authorised legal representative of [to be completed with the name of the tenderer; for joint tenders, this must include all members], hereby declare that we have examined and accept without reserve or restriction all the terms and conditions set out in the invitation to tender, in the tender specifications and in the draft purchase order for the tender procedure referred to above and, where appropriate, waive the tenderer's own general or specific terms and conditions. We offer to provide the services on the basis of our technical tender and our financial tender which do not diverge in any way from the requirements described in the tender documents as drafted by the contracting authority. Our tender complies with all the technical requirements indicated in the tender specifications.

We also undertake to respect these requirements scrupulously during the performance of the contract in case we become the awardee of the contract.

 

 

 

 

 

Name of the legal representative of the tenderer:

 

 

 

 

Signature:                                                                                       Date:]

 

 

 

 

Annex A -Financial tender

Price schedule over the duration of the contract in BWP

Item

Description

Type of unit

Number of units over the duration of the contract

Unit price in BWP 

 

Total price in BWP   

 

1

2

3

4

5

6 = 4 x 5

A

Plot 3166

Main house, servants quarter, cottage

2026 sqm

 

 

B

Plot 4979

Main house, cottage, double garage

877 sqm

 

 

C

Plot 4979

Boundary wall and mid wall

705 sqm

 

 

D

Plot 2516

Main house, cottage, garage

541 sqm

 

 

E

Plot 266

Main house, cottage, garage

569 sqm

 

 

TOTAL

 

 

 

Please note that the prices should be quoted free of all duties, taxes and other charges including VAT, as the Delegation of the European Union to the Republic of Botswana is exempt from such charges.

 

Prices must be all-inclusive ( = including preparation, materials i.e. paint, spackle, equipment, cleaning, all operational costs, administrative costs, logistical costs and transport costs, etc.)

 

 

Name: …………………………….                                  Date: ………………………………

 

 

Title: ………………………………                                  Signature: …………………………

 

Name of tenderer:

Name of the legal representative of the tenderer:

Date:                                                               Signature:

 

 

[1]               Delete if contractor is a natural person or a body governed by public law.

[2]               Delete if contractor is a body governed by public law. For natural persons, indicate the number of their identity card or, failing that, of their passport or equivalent.

[3]               OJ L 94 of 28.03.2014, p. 65

[4]               Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119, 4.5.2016, p. 1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG

[5]   Regulation (EU) 2018/1725 of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, OJ L 295/39, 21.11.2018, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1725&from=EN

 

[6]               Regulation (EU, EURATOM) No 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, repealing Regulation (EU, Euratom) No 966/2012:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2018:193:TOC

 

[7]               Delete if contractor is a natural person or a body governed by public law.

[8]               Delete if contractor is a body governed by public law. For natural persons, indicate the number of their identity card or, failing that, of their passport or equivalent.

[9]               OJ L 94 of 28.03.2014, p. 65

[10]             Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119, 4.5.2016, p. 1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG

[11]   Regulation (EU) 2018/1725 of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, OJ L 295/39, 21.11.2018, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1725&from=EN

 

[12]             Regulation (EU, EURATOM) No 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, repealing Regulation (EU, Euratom) No 966/2012:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2018:193:TOC

 

ith regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119, 4.5.2016, p. 1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG

[11]   Regulation (EU) 2018/1725 of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, OJ L 295/39, 21.11.2018, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1725&from=EN

 

[12]             Regulation (EU, EURATOM) No 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, repealing Regulation (EU, Euratom) No 966/2012:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2018:193:TOC

 

Deadline to express your interest (inscription): 
31/01/2020
Sending of invitation to tender (Indicative time): 
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