The background to the complaint

1. The present complaint concerns the rejection of a EuropeAid proposal due to the allegedly late submission of the supporting documents.

2. The complainant participated in the restricted Call for proposals EuropeAid/129-019/C/ACT/KP - Lot 2 (Democratic People's Republic of Korea - Food security Programme 2009), launched by the Commission's EuropeAid Development and Co-operation Directorate-General (AIDCO). It submitted a proposal entitled "Bridges for organic knowledge in Korea (BOKK) - building capacity for organic agriculture development in DPR Korea".

3. By letter of 19 October 2010, the Chair of the Evaluation Committee informed the complainant that its proposal had been provisionally selected. He invited the complainant to send the Financial Identification and Legal Entity Forms by the deadline of 26 October 2010. Otherwise, its application would be excluded.

4. In an e-mail dated 15 November 2010, the Commission's Programme Manager referred to the provisional selection and requested the complainant, in order to be able to initiate the Grant Agreement procedure which had to be completed by 31 December 2010, to submit certain information ("for me to be able to swiftly initiate the contracting procedure for your grant (deadline being 31/12/2010), I would need you to give me, or confirm, the following information: ..."). On 28 December 2010, the complainant sent the requested information and documents by e-mail to the Programme Manager. The complainant received an out-of-office e-mail message from the Programme Manager which read as follows:

"Thank you for your message, which I will read upon my return on 3rd January 2011. Please note that the Commission services will be closed from 23rd December to 2nd January included. For any URGENT matter between 23rd and 31st December, please contact Mr [X, Acting Head of Unit]: EMail: ... Tel: ...)".

5. The complainant did not contact Mr X after it received the out-of-office message. On 29 December 2012, the complainant also sent the requested information and documents by post to the Commission which received them on 3 January 2011. On 28 January 2011, having received no feedback, the complainant contacted the Programme Manager by telephone and was informed that the Commission had received its letter and that it would send a formal reply soon[1].

6. On 10 February 2011, the Acting Head of Unit sent a letter to the complainant, informing it that the required information had reached the Commission's services on 3 January 2011, which was too late for the Grant Agreement to be processed. He stated, however, that, considering the potential of the complainant's proposal, he hoped that the complainant would remain interested in the Commission's activities in North Korea. He drew the complainant's attention to a new Call for proposals which had been published on 23 December 2010.

7. On the same day, the complainant sent an e-mail to the Programme Manager. On 14 February 2011, it also sent a letter to the Acting Head of Unit, pointing out that it had sent the requested information both by e-mail and regular mail on 28 and 29 December 2010 respectively, thus complying with the deadline of 31 December 2010. The complainant also referred to the telephone conversation of 28 January 2011 during which, allegedly, the Programme Manager had informed it that the documents had been correctly received and were being processed. The complainant therefore concluded that, apparently, there had been miscommunication within the Unit with the result that the requested information was not received by the appropriate office or unit. It stated that a small misunderstanding should not become an obstacle to projects contributing to North Korea's fragile food security situation. The complainant therefore asked the Commission to reconsider its decision and to continue to process the Grant Agreement.

8. On 4 March 2011, the Acting Head of Unit replied and confirmed his earlier position. He argued that, after having received the Programme Manager's out-of-office message on 28 December 2010, the complainant should have forwarded its e-mail to him. He further pointed out that the original documents sent by regular mail on 29 December 2010 only reached his services on 3 January 2011, which was too late for the Grant Agreement to be processed.

9. On 11 March 2011, the complainant sent an e-mail to the Acting Head of Unit and to the Programme Manager expressing its disappointment at the outcome. By letter of 4 April 2011, the Commission reiterated that it was not possible to proceed with the Grant Agreement and informed the complainant about the procedure for appealing the Commission's decision.

The subject matter of the inquiry

10. On 14 March 2011, the complainant turned to the European Ombudsman and made the following allegation and claim:

The complainant alleged that there was a lack of proper communication within the unit concerned, and that the Commission treated the complainant's proposal unfairly.

The complainant claimed that the Commission should approve the complainant's proposal, which had been provisionally selected, and initiate the Grant Agreement procedure to enable the complainant to start the project.

11. With regard to the allegation above, the Ombudsman asked the Commission if its opinion could take into account Article 41 of the Charter of Fundamental Rights. The Ombudsman also asked the Commission to explain in its opinion (i) why it took the view that the relevant information reached its services only on 3 January 2011, even though the complainant's e-mail was received on 28 December 2010; and (ii) why it considered that it was too late for the Grant Agreement to be processed on 3 January 2011, whereas it would not have been too late if the relevant information had been forwarded to Mr X by 31 December 2010 (see the latter's letter dated 4 March 2011).

The inquiry

12. The Ombudsman forwarded the complaint to the Commission for an opinion. The Commission sent its opinion on 27 July 2011. It was sent to the complainant with a request to submit observations by 30 September 2011. The complainant did not submit observations. In an e-mail of 25 April 2012, the complainant pointed out that it did not consider it useful to make observations and that there were no new elements to add to its original complaint.

The Ombudsman's analysis and conclusions

A. Allegation of improper and unfair treatment of the complainant's proposal and corresponding claim

Arguments presented to the Ombudsman

13. The complainant alleged that there was a lack of proper communication within the unit concerned, and that the Commission treated its proposal unfairly. It claimed that the Commission should approve its proposal, which had been provisionally selected, and initiate the Grant Agreement procedure to enable it to start the project. In support of its complaint, the complainant argued that, when it received the out-of-office e-mail from the Programme Manager, it did not contact Mr X, the Acting Head of Unit, because it did not consider that its reply to the Programme Manager's request for additional information was an emergency which needed to be addressed in her absence and in the period where the Commission's services were closed. Also, the complainant had not heard of Mr X before and had no reason to think that he might be involved in the procedure. The complainant further argued that the Programme Manager informed it in a telephone conversation of 28 January 2011 that the relevant documents had been correctly received and were being processed, whereas, by letter of 10 February 2011, the complainant was informed that the documents had arrived too late for the Grant Agreement to be processed.

14. In its opinion, the Commission first explained that, once the award decision (including the list of selected beneficiaries) has been taken, individual Grant Agreements must, according to Article 77(2) of the Financial Regulation[2], be concluded by 31 December of the year following the adoption of the global commitment. In the present case, the Commission (Financing) Decision 021-094 relating to the Call for proposals EuropeAid/129-019/C/ACT/KP was taken on 8 May 2009. The deadline for the signature of the Grant Agreement was therefore 31 December 2010. The Commission pointed out that the deadline stipulated in the Financial Regulation is mandatory and cannot be extended under any circumstances. Therefore, no contract can be concluded beyond this deadline.

15. As regards the alleged mismanagement in the communication, the Commission stated that its offices were officially closed between 23 December 2010 and 2 January 2011 included. Nevertheless, in order to ensure continuity of business, especially with regard to contracts to be signed before the end of the year, an 'on-duty team' was in place in the unit concerned (DEVCO D2) in order to deal with urgent issues. Between 23 December 2010 and 2 January 2011, the Programme Manager was not in the office but had made sure that all her incoming e-mails would receive an out-of-office reply suggesting to the recipients that, in case of urgency, they should contact Mr X, the Acting Head of Unit, who was a member of the on-duty team.

16. The Commission pointed out that the on-duty team was indeed operational during the indicated days. It gave the example of another pre-selected applicant under a different Call for Proposals, who submitted an urgent inquiry to the Programme Manager and, upon receiving her out-of-office message, contacted Mr X who was able to deal with the relevant request to the applicant's satisfaction.

17. The Commission pointed out that the complainant acknowledged having received the out-of-office message. However, it did not consider its request to be urgent. Even in case of doubt, considering the importance of the issue at stake, it would have been prudent and diligent to forward the e-mail to Mr X and to let him judge whether or not the issue was urgent.

18. The Commission also pointed out that, in her e-mail of 15 November 2010, the Programme Manager had asked the complainant swiftly to submit additional information in order to be able to proceed with the contracting procedure before 31 December 2010. Thus, if the deadline for concluding the Grant Agreement was 31 December 2010, it should have been understood that the necessary information for signing the Grant Agreement had to be sent prior to the deadline. In addition, the nature of the requested information was not only necessary to materially conclude the Grant Agreement, but also quiet easy to provide: the name and position of the person who would sign the Grant Agreement on the organisation's behalf, the bank account number and IBAN code, the name and full contact details of the audit firm which the complainant wanted to use for the grant, and the starting date of the implementation of the action. It took the complainant seven weeks to send this information which presumably was readily available.

19. The Commission further argued that the complainant was aware of the consequences of non-compliance, since the Guidelines for grant applicants ('the Guidelines') provided in paragraph 5 of point 5 of Article 2.4 that: "[i]f the above-mentioned supporting documents are not provided before the deadline indicated in the request for supporting documents sent to the applicant by the Contracting Authority, the application may be rejected".

20. The Commission stated that, even in a period when offices were officially closed, it had put in place an operational communication system which - the Commission acknowledged - required the collaboration of potential applicants. The Commission however considered this cooperation to be reasonable, in view of the interest the potential applicant has in the procedure. Since the complainant did not forward its e-mail to the contact person mentioned in the Programme Manager's e-mail, the Commission services only became aware of those documents on 3 January 2011, when the documents arrived by post. However, the deadline foreseen in the Financial Regulation (31 December 2010) was mandatory. The Commission stated that, on 10 February 2011, it sent a letter to the complainant informing it that the requested documents had arrived too late for the Grant Agreement to be processed. The Commission also referred to its later letter of 4 March 2011 in which it informed the complainant that, as it had not forwarded its e-mail to the Acting Head of Unit after receiving the out-of-office reply, and as the original documents sent by post reached the Commission on 3 January 2011, it was too late for the Grant Agreement to be processed.

21. As regards the allegedly unfair treatment of the complainant's proposal, the Commission stated that the said proposal had been treated fairly and in accordance with the principles of equality and transparency. It added that this conclusion is supported by the fact that the complainant's application had been evaluated favourably and that it was provisionally selected for funding. The Programme Manager's e-mail of 15 November 2010 clearly indicated the deadline for the conclusion of the Grant Agreement and the complainant was given a reasonable amount of time to meet the Programme Manager's request. The Commission also argued that it would not have ensured equal and fair treatment of all the selected applicants, had the complainant's Grant Agreement been concluded after the expiry of the deadline set in the Financial Regulation. The Commission, therefore, did not treat the complainant unfairly, in breach of Article 41 of the Charter of Fundamental Rights and no maladministration occurred.

22. The complainant did not submit observations. However, in an e-mail of 25 April 2012, it indicated that it did not agree with the Commission's conclusions and that it continued to believe that maladministration had taken place.

The Ombudsman's assessment

23. The Ombudsman notes that point 2.4 of the Guidelines provide that "[a]pplicants who have been provisionally selected or listed under the reserve list will be informed in writing by the Contracting Authority. They will be requested to supply the following documents in order to allow the Contracting Authority to verify the eligibility of the applicants and their partners: [5 items]...

Where the requested supporting documents are not uploaded in PADOR, they must be supplied in the form of originals, photocopies or scanned versions (i.e. showing legible stamps, signatures and dates) of the said originals. However, the Legal entity sheet and the financial identification form must always be submitted in original.

If the above-mentioned supporting documents are not provided before the deadline indicated in the request for supporting documents sent to the applicant by the Contracting Authority, the application may be rejected".

24. It appears that the letter of 19 October 2010 from the Evaluation Committee set a deadline, in accordance with point 2.4 of the Guidelines. In that letter, the complainant was requested to ensure that the information uploaded in the PADOR system was correct and to send, before 26 October 2010, the financial identification form and the legal entity sheet. The letter went on to state that "otherwise [the] application will be excluded". The e-mail of 15 November 2010 from the Programme Manager, which referred to the Evaluation Committee's letter of 19 October 2010, asked the complainant to send additional information (including the name and position of the person who was to sign the Grant Agreement, the bank account number and IBAN, and the name and contact details of the audit firm) and documents, including a copy of the financial identification form "to be able to swiftly initiate the contracting procedure for [the] grant (deadline being 31/12/2010)".

25. Considering that the Programme Manager's e-mail was sent to the complainant on 15 November 2010 and that the deadline was 31 December 2010, the complainant thus had ample time (one month and a half) to send the requested information and documents. It appears, however, that the complainant took some time to react and only sent the requested information on 28 December 2010, via e-mail (namely, three days before the expiry of the deadline). On 29 December 2010, the complainant also sent the information and documents by post. In its e-mail of 28 December 2010, the complainant indicated: "[t]he scanned copy of the Financial Identification Form, with attached recent Bank Statement, that was sent to your colleagues in Unit EuropeAid/D3 is attached to this e-mail".

26. The Ombudsman notes, however, that the Guidelines provided that at least two documents, namely, the legal entity sheet and the financial identification form, had to be provided in original. It is true that the Programme Manager did not remind the complainant of this. The complainant argued in its complaint that the Programme Manager had not specified by which means the information and documents should be submitted to the Commission. However, the Ombudsman notes that this requirement was clearly stated in the Guidelines. This implies that, in the present case, the originals of these documents had to be in the Commission's possession by 31 December 2010. It appears, however, that the complainant sent the original documents on 29 December 2010 and that they arrived at the Commission only on 3 January 2011. In its letter of 4 March 2011 to the complainant, the Acting Head of Unit pointed out that the original documents had arrived too late. In its reply of 11 March 2011, the complainant did not contest this. The Ombudsman therefore concludes that, by informing the complainant that, because of the late reception of these supporting documents, it could not proceed with the Grant Agreement, the Commission did not treat the complainant's proposal unfairly. There was thus no instance of maladministration with regard to this aspect of the case.

27. As regards the other aspect of the complainant's allegation, namely, that there was a lack of proper communication within the responsible unit, the Ombudsman notes that this concerns the allegedly contradictory information given to the complainant. On 28 January 2011, the Programme Manager allegedly informed the complainant that the relevant documents had been correctly received and were being processed, whereas, by letter of 10 February 2011, it was informed that the documents had arrived too late for the Grant Agreement to be processed. The Ombudsman first notes that there is no contradiction between the various letters the EuropeAid Office sent to the complainant on 10 February, 4 March and 4 April 2011. The allegedly contradictory information concerns the telephone conversation of 28 January 2011 and the letter of 10 February 2011. According to the complainant, the Programme Manager informed it that the documents had been "correctly received" and were being processed, whereas, according to the Commission, the Programme Manager informed the complainant that the Commission had received the complainant's letter and would send a formal reply soon. In view of the conclusion he reached above on the other aspect of the allegation, the Ombudsman does not consider it necessary to conduct further inquiries into this aspect of the complaint. The Ombudsman simply points out that an alleged statement that the documents "had been correctly received and were being processed", even if it accurately reflected what was said, would not necessarily imply that all documents, including the original ones, had been received within the deadline. This statement could also mean that all documents had been received and were being analysed with the aim of evaluating whether it was possible to proceed to the signing of the Grant Agreement. There was thus no instance of maladministration with regard to this aspect of the case.

28. As regards the possibly misleading statement contained in the letter of 4 March 2011 in which the Acting Head of Unit stated "[u]nfortunately, you did not forward your e-mail to me", it is true that this letter could be understood to mean that, had the complainant reacted to the out-of-office reply by sending its e-mail to the Acting Head of Unit by 31 December 2010, the matter could have been solved. However, as noted above, it could only have been solved if the complainant had ensured that the original documents were in the Commission's possession by 31 December 2010. Moreover, the Ombudsman agrees with the view which the Commission expressed in its opinion that the Acting Head of Unit's statement could possibly have meant something else, that is, that had the complainant sent its e-mail to the Acting Head of Unit, the latter could have alerted the complainant to the fact that it needed to ensure that the original documents would be in the Commission's possession by 31 December 2010. Thus, that letter is not necessarily misleading. There was therefore no instance of maladministration with regard to this aspect of the case.

B. Conclusion

On the basis of his inquiry 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 13 June 2012

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[1] According to the complainant, the Programme Manager informed it that the documents had been correctly received and were being processed.

[2] Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002, OL 2002 L 248, p. 1.