THE BACKGROUND TO THE COMPLAINT

1. The complaint concerns contracts for the management of videoconference services for the European Commission. Videoconferencing involves communication between two or more sites using video cameras, microphones and video monitors.

2. Following a call for tenders for the provision of videoconference services, the Commission signed 'the Videoconference Services Framework Contract' with company A. The initial term of the Videoconference Services Framework Contract was three years. It was extended twice.

3. The complainant worked as a subcontractor for company A. In this context, it provided for the management of the videoconference services at the Commission on behalf of company A.

4. Network user proximity services (NUPS) refer to a set of related communication services. NUPS rely on a unified infrastructure platform, which operates in a coordinated manner. Some examples of NUPS are:

• Personal Digital Assistant Synchronisation Services;
• Future Voice Services;
• Internet Protocol Videoconference Infrastructure Services;
• Infrastructure for Call Centres Services; and
• Streaming Services.

5. The Commission launched a 'NUPS Call for Tenders', which company A subsequently won. The Commission signed 'the NUPS Framework Contract' with company A for an initial term of four years. In light of this, it was decided that the Videoconference Services Framework Contract would not be renewed. The Commission requested company A to phase out the management of the videoconference services.

6. Company A informed the Commission that it had transferred one of its sector activities to its new subsidiary, company B. As a result, responsibility for the NUPS Framework Contract was transferred to company B.

7. On 17 and 18 July 2007, the complainant turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

8. The complainant alleged that:

1. The Commission wrongly requested a phase out of the Videoconference Services Framework Contract. In support of this allegation, it argued that neither its contract with company A, nor the Videoconference Services Framework Contract between company A and the Commission, provided for such a phase out.
2. The Commission should not have included the management of the videoconference service in the NUPS Framework Contract, since this (a) was not included in the NUPS Call for Tenders and (b) was part of the Videoconference Services Framework Contract. The complainant argued that, since the Commission wrongly failed to include the management of the videoconference service in the NUPS Call for Tenders, the complainant was prevented from participating in this call.
3. The Commission should not have agreed to company B's carrying out the NUPS Framework Contract.

The complainant claimed that:

1. The Commission should pay it the amounts due to it until the end of the Videoconference Services Framework Contract.
2. The management of the videoconference service under the NUPS Framework Contract should be terminated.
3. A call for tenders should be launched for the management of the videoconference service.
4. Compensation, amounting to 10% of the value of the NUPS Framework Contract should be awarded to it, because, allegedly, it was irregularly excluded from the NUPS Call for Tenders.

THE INQUIRY

9. On 17 September 2007, the Ombudsman opened an inquiry and forwarded the complaint to the Commission. In the letter opening his inquiry, he also asked the Commission to reply to the following questions:

1. Were the services carried out by the complainant under a Contract implementing the Videoconference Services Framework Contract (that is, a contract for videoconference service management) also covered by the NUPS Call for Tenders? Please clarify the points in the Annex to the NUPS Call for Tenders which have been highlighted by the complainant.
2. Are the services carried out by the complainant under a Contract implementing the Videoconference Services Framework Contract also covered by the NUPS Framework Contract?
3. If the services carried out by the complainant under a Contract implementing the Videoconference Services Framework Contract are not covered by the NUPS Framework Contract, who will carry out these services once the Contract with the complainant expires? Is DG DIGIT[1] carrying out this work itself, or is it the case, as the complainant alleges, that company C[2] is carrying out this work?
4. What were the reasons which led the Commission to agree to company A's assigning the NUPS Framework Contract to company B? Please explain why recourse was made to Article II.11 of the NUPS Framework Contract, which concerns assignments, and not to Article II.10 of the NUPS Framework Contract, which concerns subcontracting.
5. Does the Commission consider that the Financial Regulation and its Implementing Rules, in particular Articles 92 to 97 of the Financial Regulation and Articles 130 to 138 of the Implementing Rules, may impose certain limits as regards the possibility of assigning a contract awarded as a consequence of a tender procedure? In this respect, has the Commission checked whether company B met the exclusion and selection criteria for the NUPS Call for Tenders, which must be met in order to take part in the tender procedure? In particular, did the Commission check whether company B met the economic and financial criteria of the call for tenders? Has the Commission checked whether the assignment to company B did not undermine the purpose of Article 138 of the Implementing Rules? In sum, did the Commission check whether the assignment of the NUPS Framework Contract to company B implied any substantive modification to the bid of company A?
6. Could the Commission provide the Ombudsman with a copy of all correspondence with company A on the issue of the assignment to company B? Could the Commission provide the Ombudsman with a copy of all internal notes of the Commission which deal with the assignment of the contract by company A to company B? In the event such documents are confidential, the Commission is requested to permit the Ombudsman's services to inspect the file.

10. On 15 October 2007, the Ombudsman's services carried out an inspection of the Commission's files. On 14 January 2008, the Commission sent its opinion.

11. On 1 February 2008, the Ombudsman informed the Commission that he had decided to include a new allegation within the scope of his inquiry (allegation (3)). Accordingly, he asked the Commission to provide an opinion on it. On the same date, he forwarded the opinion to the complainant with an invitation to make observations. The complainant submitted its observations on 28 February 2008.

12. On 24 April 2008, the Commission sent its second opinion. The opinion was also forwarded to the complainant with an invitation to make observations, which it sent on 23 June 2008.

13. On 17 October 2008, the Ombudsman asked the Commission to allow his services to reinspect its file(s) concerning the NUPS Framework Contract. The inspection took place on 28 November 2008. On 15 December 2008, the complainant was informed of this inspection and was provided with a copy of the inspection report.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

14. The Ombudsman would first like to underline that the present case is, technically speaking, extremely complex. For this reason, he would first like to present his understanding of the factual background.

15. The Videoconference Service Framework Contract dealt with the management of the videoconference services at the Commission. As a result of technological developments, the service carried out by the complainant evolved during the terms of the specific contracts it signed. For example, progressive technological developments made it possible to carry out more tasks remotely. These very technological developments led to the Commission's decision to set up a uniformed infrastructure platform for communication services. Therefore, the Commission did not renew the Videoconference Service Framework Contract and launched the NUPS Call for Tenders[3].

16. The NUPS services management includes a number of tasks: (a) configuration management; (b) incident and problem management; and (c) security management. The NUPS services management will be performed for all NUPS (and not only for videoconference service management). This NUPS service management includes an IP Videoconference Infrastructure Service, which is based on IP[4] and relies more on remote actions to control the system and solve problems that may arise.

A. Allegation that the Commission wrongly requested a phase out of the Videoconference Service Framework Contract and the related claim

Arguments presented to the Ombudsman

17. According to the complainant, the Commission requested the phase out of the complainant's contract with company A. The complainant alleged that the Commission was wrong to do this. It argued that neither its contract with company A, nor the Videoconference Service Framework Contract between company A and the Commission, provided for such a phase out. Therefore, the complainant refused to terminate its contract with company A.

18. The complainant claimed that the Commission should, in the context of the Videoconference Service Framework Contract, pay it the amounts due to it.

19. In its opinion to the Ombudsman, the Commission first stated that it had no contractual link with the complainant.

20. The Commission also explained that it is standard practice, at the end of each service contract, for information to be handed over from the previous contractor to the new one. This process is known as a 'phase out' for the first contractor and a 'phase in' for the new contractor. This 'phase out - phase in' process is necessary to ensure the continuity of the service. The phase out may be provided for in the call for tenders, but this is not always the case. It noted that the services provided during the phase out period are identical to those provided for in the Videoconference Service Framework Contract. The level of these services is, however, different and does not justify the payment of the full price.

21. In the present case, Amendment No 7 to the Videoconference Service Framework Contract extended the Contract. This period should have been used to phase out the Videoconference Service Framework Contract. During this phase out period, it was planned to sign a first specific contract for four months (this corresponds to Specific Contract No 8) and a second specific contract for two or three months. This would have covered the phase out process. However, the second specific contract was never signed. This had adverse consequences for the next contract and the quality of the services offered to the users.

22. The Commission stated that the handing over of information was provided for in paragraph 9.2 of the Videoconference Service Framework Contract.

23. The Commission also rejected the complainant's claim. First it referred to the provisions of the General terms and conditions for informatics contracts, notably point 1.2.5, which reads as follows:

"The General terms and conditions for the informatics contracts and Framework Contract lay down the basic conditions for placing orders which are to be executed by way of Specific agreement. Signature of the Framework Contract does not place the Commission under any obligation whatsoever to place orders. The Commission and the Contractor shall sign a separate Specific agreement in respect of each order ... If a Specific agreement has not been signed, no Specific agreement is deemed to exist."

24. The Commission also made reference to Article 117 of the Financial Regulation's Implementing Provisions[5], which were applicable when the Videoconference Service Framework Contract was signed. According to the Commission, the last paragraph of Article 117 shows that only specific agreements are true legal commitments and should be preceded by budgetary commitments. In sum, if no specific agreement has been signed, the Commission is not committed to place an order with its contractor or the subcontractor. In the present case, no specific agreement was signed. Therefore, there was no legal commitment.

25. Moreover, the Commission noted that no money was due to the complainant, given that it did not carry out any services during the relevant period.

26. In its observations on the Commission's opinion, the complainant repeated that the phase out was not provided for in the Videoconference Service Framework Contract.

The Ombudsman's assessment

27. First, the Ombudsman underlines that specific contracts concluded under a framework contract cannot extend beyond the term of the framework contract itself. Thus, in the present case, the specific contracts could, in any case, not extend beyond the term of the Videoconference Service Framework Contract.

28. The Ombudsman also considers that, while specific contracts cannot extend beyond the term of the framework contract, it is also the case that specific contracts need not cover the entire term of the framework contract. A specific contract, for a specific task, can only cover a specific period of the framework contract.

29. It is entirely within the discretion of the Commission to decide whether or not it needs to enter into a specific contract. In sum, while the framework contract gives the Commission the possibility to enter into specific contracts, it does not create any obligation to enter into a specific contract. Furthermore, the fact that, during certain periods of the framework contract, the Commission entered into specific contracts for the provision of a certain service, such as the provision of videoconference service management for a certain period, does not imply any obligation on the part of the Commission to enter into such contracts for other periods of the framework contract. Finally, the fact that the Commission entered into specific contracts for a given level of service does not imply that, at a later stage of the framework contract, it cannot enter into a contract for a reduced level of service.

30. On the basis of the above, the Ombudsman considers that, even though the term of the Videoconference Service Framework Contract was extended, this only implied that there was a possibility to enter into a new specific contract for the management of videoconference services until this new term. However, the existence of such a possibility does not, in any way, imply the existence of an obligation to enter into a new specific contract for the management of videoconference services up to that date. In sum, the Commission had no obligation to conclude new specific contracts with company A for the management of videoconference services.

31. After carefully reviewing the Videoconference Service Framework Contract, the Ombudsman finds no provision specifically referring to a 'phase out' of the Videoconference Service Framework Contract or of specific contracts. However, it is implicit in any contract with a fixed term that the contracting parties will make appropriate preparations for the expiry of the contract. Furthermore, the 'phase out' of the Videoconference Service Framework Contract, or of specific contracts, did not require the provision of services other than the services which were normally provided for under the Videoconference Service Framework Contract (including the services provided by the complainant under specific contracts). The only difference would be that the intensity of such services would be lower during the phase out period. Thus, if the Commission had entered into a specific contract for the phase out of the service, this would not have gone beyond the scope of the Videoconference Service Framework Contract. Since the Commission was entitled, at any time during the term of the Videoconference Service Framework Contract, to refrain completely from entering into a specific contract for the videoconference service management, it was necessarily entitled to enter into a specific contract for the provision of a reduced level of videoconference service management.

32. In light of the above, the Ombudsman finds no maladministration as regards this aspect of the complaint. He, therefore, concludes that the complainant's related claim cannot be sustained.

B. The allegation and the related claim that the Commission should not have included the management of the videoconference service in the NUPS Framework Contract, since it was not included in the NUPS Call for Tenders

Arguments presented to the Ombudsman

33. According to the complainant, the Commission should not have included the management of the videoconference service in the NUPS Framework Contract, since it was not included in the NUPS Call for Tenders. The complainant also argued that the Commission should not have included the management of the videoconference service in the NUPS Framework Contract, since it fell under part of the Videoconference Service Framework Contract.

34. The complainant claimed that the management of the videoconference service under the NUPS Framework Contract should be terminated. It referred to an Annex to the NUPS Call for Tenders dealing with the IP Videoconference Infrastructure Service, which states the following:

"1. This document only covers IP Videoconference Infrastructure aspects. Other services required for the end-to-end videoconference delivery, such as add, move & change services, booking & scheduling services, ... will not be under the NUPS Contractor responsibility and therefore will not be described in details in this document ...

2. The IP Videoconference Infrastructure Service is a new service for the Commission ... [and] will be delivered by the combination of several Contracts: ...

- NUPS Contract for IP Videoconference Infrastructure Service Management, ...

- Contract for end-to-end Videoconference Service Management (Booking, Scheduling, front line for end user support ...

4.3.4 ... This choice will have no significant impact on the required IP videoconference Infrastructure service management as booking and scheduling will be under the responsibility of the Videoconference Service Management team (DIGIT A1 - SSU).

5.1 ... When the IP Videoconference Infrastructure service will achieve an operational status, the first level support to the End-Users of the Videoconference Service shall be given by DIGIT A1 unit (SSU - Service Support Utilisateur) which is responsible for Videoconference Service Management and also the frontline for End-User. Second level support for the IP Videoconference Infrastructure Service will be provided by the NUPS-Contractor.

6.3. Videoconference Service Management

Videoconference Service Management is under the responsibility of DIGIT A1 (SSU - Service Support Utilisateur) ..."

35. In its opinion, the Commission explained that it was not possible to give an exhaustive list of NUPS services. However, some services which could potentially be considered as NUPS were given as examples. Videoconference services were referred to as one such example. The Commission stated that a more detailed description of some services was given in the Tendering Specifications (Annex I to the Call for Tenders).

36. In reply to the Ombudsman's question concerning whether the services carried out by the complainant under a specific contract implementing the Videoconference Service Framework Contract were also covered by the NUPS Call for Tenders, the Commission explained that the NUPS Framework Contract can encompass "any service which corresponds to the definition of a NUPS given in the Tendering Specifications of the NUPS Call for Tenders." The infrastructure of the videoconference service is a NUPS. As regards the management of that videoconference service, the Commission noted that the needs and the conditions in which the videoconference service operates had changed. For example, it is no longer necessary for staff to be present in the videoconference room (such work is now done remotely). The general conditions of NUPS referred to the "management of the videoconference service" and implicitly excluded it from NUPS scope. This was because a unit of DG DIGIT had taken over responsibility for such management. In conclusion, the Commission stated that technological developments rendered the specific services provided by the complainant under the Videoconference Service Framework Contract unnecessary. They were thus not specifically covered by the NUPS Call for Tenders.

37. In reply to the Ombudsman's question concerning whether the services carried out by the complainant under a contract implementing the Videoconference Service Framework Contract were also covered by the NUPS Framework Contract, the Commission explained that the specific services provided by the complainant under the Videoconference Service Framework Contract were not covered by the NUPS Framework Contract. The service of "videoconference management", which was provided for by the NUPS Framework Contract, was of a different type to the specific services provided by the complainant under the Videoconference Service Framework Contract. This difference was confirmed by the fact that an optional preparatory phase of the videoconference management service took place and was supported by a specific contract.

38. The Ombudsman also asked who would perform the services previously carried out by the complainant, once the specific contract with the complainant had expired. In reply the Commission stated that, since the service provided by the complainant under the Videoconference Service Framework Contract no longer exists, nobody would carry it out. A different videoconference service is carried out by the contractor of the NUPS Framework Contract, and is partially or totally executed by a subcontractor, namely, company C.

39. The Commission concluded that the labour intensive management of the videoconference service, provided by the complainant under the Videoconference Service Framework Contract, was not covered by the NUPS Framework Contract. The technological evolution enabled a more advanced management of the videoconference service to be put in place, which was technically superior and less labour intensive.

40. The Commission thus rejected the complainant's claim, by referring to the fundamental difference between the services carried out under the NUPS Framework Contract and those carried out under the Videoconference Service Framework Contract.

41. In its observations on the Commission's opinion, the complainant explained that the management of the videoconference service was already functioning under the new IP infrastructure during the term of the Videoconference Service Framework Contract. Most of the complainant's work was already done remotely, notably the management of booking requests, the technical organisation, as well as the implementation and assistance operations in the event of problems. The NUPS Call for Tenders[6] identified software applications to manage the videoconference infrastructure remotely, which the complainant used under the Videoconference Service Framework Contract and which are clearly not covered by the NUPS Framework Contract. As regards the human resources needed, at the Commission's request, the complainant's staff remained in the centralised studios, from which they could remotely control the other videoconference rooms.

42. According to the complainant, the NUPS Call for Tenders did not state that, following the set-up of a new IP infrastructure, the management of the videoconference service would be a NUPS.

43. In addition, the complainant stated that, even if the NUPS Framework Contract is a global concept, its implementation could not include services explicitly excluded in the NUPS Call for Tenders.

44. Moreover, it is not the management service which fundamentally changed, but the infrastructure service. The complainant referred to a statement made by the contract manager of the NUPS Framework Contract, who stated that there was no major difference between the service provided under the Videoconference Service Framework Contract and the NUPS Framework Contract. The instructions given by the Commission in the framework of a phase out show that the management of the videoconference service under the Videoconference Service Framework Contract was transferred to the NUPS Framework Contract. The complainant concluded that both services were identical.

The Ombudsman's assessment

45. The Ombudsman first of all notes that, unless a framework contract grants exclusivity rights to a contracting party, the fact that the provision of a particular product or service may fall within the scope of a particular framework contract does not prevent the inclusion of identical products or services in a separate framework contract in place at the same time. Thus, it was entirely possible for the term of the NUPS Framework Contract to commence prior to the expiry of the Videoconference Service Framework Contract. In addition, it was possible to include in the NUPS Framework Contract products or services that were also included in the Videoconference Service Framework Contract[7]. Thus, the argument that the Commission could not have chosen to include the services provided by the complainant (that is, the management of the videoconference service) in the NUPS Framework Contract, because they also fell under the Videoconference Service Framework Contract, is irrelevant.

46. The complainant also argues, however, that the Commission should not have included the "management of the videoconference service" in the NUPS Framework Contract, given that, in the complainant's view, this service was not included in the NUPS Call for Tenders.

47. The Ombudsman notes that, as a general rule, the scope of a framework contract cannot exceed the scope of the relevant call for tenders. Thus, it is necessary to inquire, if all the services procured through the NUPS Framework Contract were covered by the NUPS Call for Tenders.

48. According to the specific contracts under the NUPS Framework Contract, the contractor should provide a reliable videoconference solution to the Commission services, including a specific level of support, of intervention and of assistance according to the type of videoconference end-point. The following activities, relating to both the infrastructure and the endpoints, are covered: incident management, problem management, change management, software upgrades, and configuration.

49. The subject of the NUPS Framework Contract is "the provision to the Commission of Informatics services...the assurance by the contractor of the coherence and correct functioning of the System and its integration into the informatics architecture of the Commission, [the] provision of Telecommunication services... and the provision of the corresponding maintenance and documentation." According to an Annex to the NUPS Framework Contract, "[f]or each major NUPS, a management/reporting structure has to be put in place to ensure all service/project/documentation/process definition and management issues are dealt with professionalism." The Ombudsman notes that the Tender Specifications of the NUPS Call for Tenders are annexed to the NUPS Framework Contract (Annex V) and are, therefore, part of the NUPS Framework Contract.

50. The Tender Specifications of the NUPS Call for Tenders provides for a CORE service which covers services common to the operation and management of all NUPS. These include the common Service Desk, the NUPSs Management Infrastructure and basic organisational structures to support NUPSs operations. The various NUPS Service Management activities are: service monitoring; incident and problem management; change management; capacity and performance management; service availability management; and system security management. A list of possible NUPS is provided in chapter 10 of the NUPS Call for Tenders. One of the examples is the 'IP Videoconference Infrastructure Service'. This possible NUPS is further described in Annex 1.3 of the NUPS Call for Tenders. It states that the "[current] infrastructure presents some weaknesses that will be addressed by a new IP-based videoconference infrastructure ... The IP Videoconference Infrastructure Service is a new service for the Commission ... [The] Service will include the management of videoconference core equipments..."

51. After carefully examining all the elements contained in the file, the Ombudsman concludes that the service delivered by the NUPS contractor, which mainly concerns problem solving issues, is included in the NUPS Call for Tenders and, therefore, in the Framework Contract. The Ombudsman thus concludes that the scope of the framework contract did not exceed the scope of the NUPS Call for Tenders, and that the services procured through the NUPS Framework Contract were covered by the NUPS Call for Tenders.

52. The complainant argued that, under the Videoconference Services Framework Contract and the corresponding specific contracts, the service it carried out was already functioning under the new IP infrastructure. Most of its work was already done remotely and used the software applications mentioned in the NUPS Call for Tenders. The Ombudsman considers that the evolution of the complainant's tasks over time might be problematic, if the evolved tasks were not covered by his specific contracts and the Videoconference Services Framework Contract. However, this issue is outside the scope of the present inquiry, which concerns the compatibility of the NUPS Framework Contract and the NUPS Specific Contracts. Therefore, the Ombudsman concludes that there is no need for further inquiry into this matter.

53. Hence, to conclude, the Ombudsman finds no maladministration as regards this aspect of the complaint. He concludes that the complainant's related claim cannot be sustained.

C. The allegation and the related claim that, since the Commission wrongly failed to include the management of the videoconference service in the NUPS Call for Tenders, the complainant was prevented from participating in the Call

Arguments presented to the Ombudsman

54. The complainant argued that, since the Commission wrongly failed to include the management of the videoconference service in the NUPS Call for Tenders, it was prevented from participating in this Call. It claimed that a new call for tenders should be launched for the management of the videoconference service. It also claimed compensation amounting to 10% of the value of the NUPS Framework Contract, on the grounds that it was irregularly excluded from the NUPS Call for Tenders.

55. In its opinion, the Commission explained that the NUPS Call for Tenders did not provide an exhaustive description or list of all the services, which could potentially be carried out through the resulting Contract. However, the videoconference infrastructure service was mentioned as an example.

56. According to the Commission, since the call for tenders was open, the complainant could have requested a copy of the General Conditions and participated in the information session. If it had doubts about the services covered by the call or on the NUPS concept, it could have addressed written questions to the Commission. The Commission took the view that it made no mistake in relation to the call. It was the complainant's decision whether or not to participate in it.

57. The NUPS Framework Contract will be in force during more than a year. Therefore, the Commission considered that there was no need to launch a new call for tenders.

58. The Commission added that the complainant had not been irregularly excluded from the NUPS Call for Tenders. It was free to gather information on the call for tenders and to take part in it.

59. In its observations, the complainant explained that, since it was clear that the management of the videoconference service was not part of the NUPS Framework Contract, there was no need for it to take part in the call for tenders. Traditionally, when calls for tenders dealt with a complainant's expertise, tenderers would contact it. As regards the NUPS Call for Tenders, a tenderer indicated to the complainant that it had not contacted it because the management of the videoconference service was not covered.

The Ombudsman's assessment

60. As regards the inclusion of a videoconference management service in the NUPS Call for Tenders, the Ombudsman refers to his conclusion in paragraph 51 above.

61. The NUPS Call for Tenders was published in the Official Journal. The Contract notice outlined that the complainant had the possibility to attend the information session organised by the Commission. According to the Tendering Specifications, an interested party or, in this instance, the complainant could also have asked written questions. The complainant used neither of these possibilities to obtain clarifications on the NUPS Call for Tenders.

62. The Ombudsman notes the complainant's observation that, contrary to what happened in other calls, it was not contacted by other tenderers to take part indirectly in the call as a subcontractor. However, the Commission is not responsible for how potential tenderers structure their bids, including whether they decide to use certain subcontractors or not. Thus, the fact that company A chose not to use the complainant as a subcontractor is not the Commission's responsibility either.

63. The Ombudsman therefore concludes that there has been no maladministration by the Commission and that the complainant's claims cannot be sustained.

D. Allegation that the Commission should not have agreed to company B's carrying out the NUPS Framework Contract

Arguments presented to the Ombudsman

64. The complainant alleged that the Commission should not have agreed to company B's carrying out the NUPS Framework Contract.

65. In its opinion, the Commission explained that company A informed the Commission that it had transferred one sector activity, including the NUPS Framework Contract, to its new subsidiary company B, and asked the Commission to formalise the transfer. After consulting its relevant services, the Commission took note of this transfer and formalised it in Amendment No 1 to the Contract.

66. In reply to the Ombudsman's question concerning the reasons which led the Commission to agree to company A's assigning the Contract to company B[8], the Commission explained the following: the Commission requested information from company A about the transfer to company B. In its reply, company A provided a copy of the Official Journal, which showed the transfer of the sector activity to company B. Therefore, according to the Commission, this was not a request for subcontracting, which would have led to the application of Article II.10 of the Framework Contract, but an assignment. The Commission pointed out that the Contract was governed by the relevant national law and that company A's position was adequately supported by the provisions of the applicable Company Code. Even if Article II.11 of the NUPS Framework Contract provided that any assignment should be authorised by the Commission, it was questionable whether such authorisation was necessary, given the provisions of the Code. According to the said Code, the assignment was binding on the Commission as from a certain date. Therefore, it could not refuse it. However, it requested the signature of an amendment to the Contract and asked for information and guarantees from company A and company B.

67. In reply to the Ombudsman's question concerning the provisions of the Financial Regulation and its Implementing Rules[9], as well as the limits they might impose on the assignment of a contract[10], the Commission explained that, as regards exclusion criteria, company B was a member of another consortium which took part in the NUPS Call for Tenders. Thus, the exclusion criteria for this company had already been checked. Moreover, company B was already a contractor of the Commission in the framework of other contracts. The Commission would, therefore, have been aware, if company B had been flagged in the database provided for by Article 95 of the Financial Regulation and Article 134a of its Implementing.

68. As regards selection criteria, when preparing the amendment to the Contract, the Commission requested and obtained:

- an endorsement from company A, including the following elements:

• a statement from company A accepting responsibility for ensuring that company B would successfully execute the Contract on both technical and financial levels;
• a statement from company A confirming that all necessary resources for the execution of the Contract had been transferred to company B;
• clarifications as regards steps taken to limit the impact of the transfer on the execution of the Contract; and

- a bank guarantee for company B for the same amount initially requested from company A.

The assignment to company B did not result in a change to company A's rights and obligations. Company B took over the NUPS Framework Contract in its entirety; none of its terms were renegotiated. The tender submitted by company A is part of the NUPS Framework Contract and constitutes Annex VI to the Contract. Therefore, the assignment could not avoid the applicability of Article 138 of the Implementing Provisions. The most economically advantageous offer still formed the basis of the NUPS Framework Contract.

69. In reply to the Ombudsman's question concerning the correspondence with company A on the issue of the assignment to company B[11], the Commission explained that, during the inspection, the Ombudsman's services took a copy of the note for the file, which contained all of the information requested.

70. According to the complainant, the change in the company executing the Contract had a direct impact on the complainant's possibility to remain or to become the subcontractor of company A for this Contract. To its knowledge, no provision of Community law deals with such an assignment after the award of a contract. Finally, it considered that the purchase of company B by company A did not imply the transfer of the Contract to company B.

The Ombudsman's assessment

71. Article II.11 of the Framework Contract states that:

"I. The contractor shall not assign the rights and obligations arising from the Contract, in whole or in part, without prior written authorisation from the Commission.

II. In the absence of the authorisation referred to in 1 above, or in the event of failure to observe the terms thereof, assignment by the Contractor shall not be enforceable against and shall have no effect on the Commission."

72. The Ombudsman notes that the Commission signed with company A and company B Amendment No 1 to the NUPS Framework Contract, which dealt with the assignment of the contract. He, therefore, takes the view that this Amendment constitutes the Commission's implicit written authorisation to company A to assign the Framework Contract to company B. He thus finds that assignments are foreseen in the Framework Contract, provided prior authorisation is given. The assignment in question was carried out in accordance with this procedure. He thus finds no maladministration as regards this aspect of the allegation.

73. When it agreed to the assignment, the Commission had assurances that company B met the exclusion criteria (because it was a member of a consortium which took part in the NUPS Call for Tenders). Furthermore, since company B was already one of the Commission's contractors, the Commission would have been aware, if it had been included in the central exclusion database, which contains details of candidates and tenderers excluded from procurement procedures.

74. Moreover, the Commission requested guarantees regarding the selection criteria, namely, (a) a statement from company A accepting responsibility for the successful execution of the Contract on both technical and financial levels and confirming that all necessary resources had been transferred to company B, as well as (b) a bank guarantee.

75. Finally, the Ombudsman notes the Commission's statement that the most economically advantageous offer still forms the basis of the NUPS Framework Contract.

76. He, therefore, concludes that the Commission has provided coherent and reasonable explanations for accepting the assignment of the contract to company B and finds no maladministration as regards this aspect of the complaint.

E. Conclusion

On the basis of his inquiries into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration by the Commission.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 26 August 2009

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[1] DG DIGIT stands for Directorate-General for Informatics.

[2] Company C is a subcontractor of company B.

[3] According to the Call, NUPS "... use the generic IP service (thus network-related), are operated on a shared, common infrastructure and service organisation, require a specific management infrastructure (different from any other management infrastructure in place)..." (page 24).

[4] IP stands for Internet Protocol.

[5] Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).

Article 117 states the following: "1. A Framework Contract is a contract concluded between a contracting authority and an economic operator for the purpose of laying down the essential terms governing a series of Specific Contracts to be awarded during a given period, in particular as regards the duration, subject, prices, conditions of performance and the quantities envisaged ...

2. Specific Contracts based on the Framework Contracts referred to in paragraph 1 shall be awarded in accordance with the terms laid down in the Framework Contract.

3. Only Specific Contracts concluded under Framework Contracts shall be preceded by a budget commitment."

[6] Annex 1.3a.

[7] Indeed, it is not disputed that a videoconference service was included within the scope of both Framework Contracts.

[8] The full text of the question is contained in paragraph 9.

[9] Articles 130 to 138 of the Implementing Rules deal with the technical specifications, the exclusion and the selection and award criteria.

[10] The full text of the question is contained in paragraph 9.

[11] The full text of the question is contained in paragraph 9.