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Decision of the European Ombudsman on complaint 1365/2004/TN against the European Commission
Otsus
Juhtum 1365/2004/TN - Alguskuupäev: {0} Neljapäev | 03 juuni 2004 - Otsuse kuupäev: {0} Reede | 29 aprill 2005
Summary of decision on complaint 1365/2004/TN against the European Commission
The complaint concerned the Commission's evaluation of a project proposal submitted under the Sixth Research Framework Programme. A consortium of European companies had applied for funding for an offshore wind project off the Irish coast. The complainant alleged that the Commission had made a manifest error of evaluation of the consortium's project proposal by stating that the consortium lacked a specialised foundation designer. According to the complainant, the proposal stated that the Danish partner of the consortium was a specialist in the field concerned. The complainant also argued that the company in question was in all likelihood the leading company in the world in the specific field. The complainant claimed, among other things, that the Commission should correct the factual errors made in its evaluation of the project proposal.
In its opinion, the Commission explained how the evaluation of proposals had been carried out, arguing that the experts evaluating the offshore wind project proposal felt that the information provided, in merely four lines, concerning the Danish partner, which would play a key role in implementing the project, was not convincing.
In his decision, the Ombudsman recalled that his task was not to re-evaluate the project proposal in question but to investigate whether there had been a manifest error of evaluation by the Commission. The Ombudsman found that, contrary to the complainant's assertion, the project proposal's rather brief information on the Danish partner contained no reference to the company being a specialist or the leading company in the world in the field concerned. The Ombudsman therefore considered, assuming that the complainant was correct as regards the Danish partner's standing, that the complainant had not demonstrated that the Commission or its experts who carried of the evaluation of the proposal should have been aware of the partner's standing regardless of the information provided in the proposal. The Ombudsman did not, therefore, consider that the Commission had committed a manifest error of evaluation in concluding, on the basis of the information contained in the proposal, that the consortium lacked a specialised foundation designer.
As regards the complainant's claim that the factual error should be corrected, the Ombudsman pointed out that he understood the Commission to argue that the project proposal lacked information about the Danish partner and not that the Commission contested the complainant's statement that the partner was a specialist or even the leading company in the world in the field in question. In view thereof, and of the finding that the Commission had not committed a manifest error of evaluation, the Ombudsman found no ground to pursue the claim in question.
Strasbourg, 29 April 2005
Dear Mr H.,
On 11 May 2004, you made a complaint to the European Ombudsman on behalf of Fuinneamh Sceirde Teoranta (FST) concerning the European Commission's evaluation of proposal no. 503170 - DOWIAC under the Sixth Research Framework Programme.
On 3 June 2004, I forwarded the complaint to the President of the Commission. The Commission sent the English translation of its opinion on 25 August 2004. I forwarded it to you with an invitation to make observations, which you sent on 29 October 2004, with further information provided on 11 December 2004.
I am writing now to let you know the results of the inquiries that have been made.
THE COMPLAINT
According to the complainant, the relevant facts are, in summary, the following:
Fuinneamh Sceirde Teoranta (hereafter "FST") led a consortium of European companies, which applied for funding under the Sixth Research Framework Programme for an offshore wind project off the Irish coast. However, the Commission's evaluation of the DOWIAC project proposal was grossly factually incorrect. The Commission's evaluation report states, among other things, that the consortium lacks a specialised foundation designer(1), when in fact the Danish partner of the consortium, Techwise, is in all likelihood the leading company in the world in this specific field.
The complainant questions the point in the Commission using experts to review funding applications if the experts' expertise is not used. The experts do not seem to have made use of their expertise when assessing the DOWIAC proposal's statement that Techwise is a specialist in the field concerned.
The complainant alleges, in substance, that the Commission made a manifest error of evaluation of the consortium's project proposal by stating that the consortium lacked a specialised foundation designer.
The complainant claims that:
1) The Commission should correct the factual errors made in its evaluation of the project proposal;
2) The Commission should re-examine the proposal as regards the awarding of funding; and
3) A revision should be made of the Commission's procedures, in order to allow applicants to review their evaluation reports for factual errors prior to the award decision.
THE INQUIRY
The Commission's opinionIn its opinion, the Commission makes, in summary, the following comments:
The DOWIAC proposal was submitted under the call for proposals for indirect actions for the awarding of a Community grant under the specific programme of research, technological development and demonstration "Integrating and strengthening the European research area (2002-2006)", priority: "Sustainable energy systems". The aim of the proposed project was to develop a suitable offshore foundation concept for the installation of wind turbines in the Atlantic Ocean off the coast of Ireland and Scotland.
The DOWIAC proposal was evaluated in April 2003 by independent experts from outside the Commission in accordance with the procedures published and applied under the Sixth Framework Programme(2). The proposal was rejected unanimously by the three experts, being given an overall mark of 15.6 out of a total of 30 points. It did not reach the minimum threshold required for five out of six evaluation criteria. The evaluation exercise took place under the supervision of two observers who had the task of ensuring that the relevant procedures were strictly applied. These observers did not mention any anomalies concerning the way in which the DOWIAC proposal had been evaluated.
The Classification Committee of the Commission's Directorate-General for Energy and Transport (hereafter "DG TREN") confirmed all the evaluation results. The results and all the evaluation reports were then sent to the Member States' representatives in the Framework Programme Committee. Having learnt about the content of the evaluation report through the Irish delegation, FST sent a letter to the Head of Unit D2 in DG TREN on 7 July 2003. FST's letter alleges errors by the evaluators. In reply, DG TREN informed FST that it could not provide any information about the evaluation procedure at that stage since the evaluation had not yet been completed. The same alleged errors in the evaluation were brought to DG TREN's attention in an e-mail of 9 July 2003, from an Irish Member of the European Parliament. In reply, DG TREN again explained that it could not yet provide any information about the evaluation procedure. On 16 July 2003, the Framework Programme Committee approved the evaluation results. During its session, the Irish delegation did not mention any problems pertaining to the DOWIAC proposal. A letter explaining that the DOWIAC proposal had been rejected was sent to FST on 30 July 2003. The evaluation report was enclosed with this letter.
According to the Commission, the complaint to the Ombudsman restates criticism and allegations that the FST already has brought to the Commission's attention and to which the Commission already has replied in each case.
As regards the experts' opinion that the project partnership did not have a true specialist on foundation design, the Commission recalls that the experts are required to evaluate project proposals, including the quality of the participants, solely on the basis of what is presented in the text of the proposal and not on the basis of the participants' presumed reputation and image. The three experts felt that the information provided, in merely four lines, concerning the Danish partner, which would play a key role in implementing the project, was not convincing.
The experts' opinion also pointed out that the application contained no information about the design of the foundation. The Commission points out that the design of the foundation was the main objective of the project and that the experts felt that they were unable to assess the quality and innovative character of the design because they did not have any information on the strategies envisaged.
Not only the DOWIAC proposal's overall mark, but also the marks for five out of six evaluation criteria, failed to reach the minimum threshold. The evaluation criteria were evaluated independently of each other in accordance with the applicable procedures. A higher, or even maximum, mark for one or two of the evaluation criteria would not have resulted in the DOWIAC proposal being awarded Community grant.
As regards the complainant's claims, the Commission argues that the proposal was evaluated in accordance with the procedures in force under the Sixth Framework Programme and that the results do not need to be corrected or re-evaluated. Nor do the Commission's procedures need to be revised since the current provisions are sufficient to ensure that all complaints which are well founded get a fair examination. The examination of well founded complaints can lead to the results being re-examined if evidence of errors or anomalies is found.
It is understandable that certain applicants are not satisfied with the results of the evaluation and wish to have the evaluation results reviewed, given that the oversubscription of proposals means that, on average, only one in four or five proposals can be accepted for funding. However, the Commission does not consider it necessary to review the procedures in order to allow applicants to review their evaluation reports for factual errors prior to the award decision, as proposed by the complainant. There are already numerous checks and balances in the evaluation procedure itself which should prevent such errors from occurring and which take effect in the event of a manifest error. Any additional procedure allowing a limited number of unsatisfied applicants to have their cases undergo further review would lead to inequality of treatment.
The Commission is confident that the procedures used to carry out the evaluation of proposals with the help of independent experts are safe, secure and transparent. The Guidelines on Proposal Evaluation and Selection Procedures for the Sixth Framework Programme(3) provide a clear legal basis for the evaluation of proposals. These guidelines require, inter alia, transparent procedures for the selection of independent experts, briefing of independent experts prior to carrying out any evaluation, an individual evaluation of each proposal by at least three experts, consensus agreement between the experts evaluating each proposal, a panel evaluation resulting in the Evaluation Summary Report for each proposal and a ranked list of proposals having passed the thresholds.
The complainant's observationsIn his observations, the complainant maintains his initial complaint and makes, in summary, the following additional comments:
The Commission made an erroneous factual statement in its evaluation but is nevertheless unwilling to consider that it may be at fault in any way. FST sees little point in the Commission using experts who know so little about the area being evaluated that the clear information given about Techwise could lead to such a blatant mistake. Experts should have industry specific knowledge, not just academic expertise. FST therefore remains in the belief that there is something wrong with the Commission's procedures as regards both the evaluation of proposals and the correction of factual errors. FST understands that, even if the factual error is corrected in its case, the DOWIAC project may still not receive funding. However, the error should nevertheless be corrected, if only for the reputation of Techwise, and the project should at least be re-considered for funding in light of the correction made.
THE DECISION
1 The alleged manifest error of evaluation1.1 The complaint concerns the European Commission's evaluation of proposal no. 503170 - DOWIAC under the Sixth Research Framework Programme. The complaint is made on behalf of Fuinneamh Sceirde Teoranta ("FST") which led a consortium of European companies applying for funding for an offshore wind project off the Irish coast. The complainant argues that the Commission's evaluation of the DOWIAC project was grossly factually incorrect. The Commission's evaluation report states, among other things, that the consortium lacks a specialised foundation designer, when it was stated in the project proposal that the Danish partner of the consortium, Techwise, is a specialist in the field concerned. According to the complainant, Techwise is in all likelihood the leading company in the world in the specific field.
The complainant and FST see little point in the Commission using experts who know so little about the area being evaluated that the clear information given about Techwise could lead to such a blatant mistake. Experts should have industry specific knowledge, not just academic expertise. The factual error should be corrected, if only for the reputation of Techwise, and the project should be re-considered for funding in light of the correction made.
The complainant alleges, in substance, that the Commission made a manifest error of evaluation of the consortium's project proposal by stating that the consortium lacked a specialised foundation designer.
1.2 The Commission argues that the DOWIAC proposal, the aim of which was to develop a suitable offshore foundation concept for the installation of wind turbines in the Atlantic Ocean, was evaluated by independent experts from outside the Commission in accordance with the procedures published and applied under the Sixth Framework Programme(4). The proposal was rejected unanimously by the three experts. The evaluation exercise took place under the supervision of two observers who did not mention any anomalies in the evaluation. Nor did the Irish delegation to the Framework Programme Committee mention any problems pertaining to the DOWIAC proposal. The Framework Programme Committee approved the evaluation results in July 2003.
As regards the experts' opinion that the project partnership did not have a true specialist on foundation design, the Commission recalls that the experts are required to evaluate project proposals, including the quality of the participants, solely on the basis of what is presented in the text of the proposal and not on the basis of the participants' presumed reputation and image. The three experts felt that the information provided, in merely four lines, concerning the Danish partner, which would play a key role in implementing the project, was not convincing.
1.3 The Ombudsman recalls that it is for the Commission and not for the Ombudsman to carry out the evaluation of project proposals. The task of the Ombudsman in dealing with the present complaint is not to re-evaluate the complainant's proposal, but to investigate whether there was a manifest error of evaluation by the Commission. The Ombudsman considers that the question of whether there was a manifest error of evaluation by the Commission should be examined on the basis of the information available to the Commission and the evaluators in the context of the evaluation procedure.
1.4 The Ombudsman notes that the common evaluation criteria for Specific Targeted Research Projects under the specific programme "Integrating and strengthening the European research area (2002-2006)"(5) stipulate that the evaluation of a project proposal aims to determine, inter alia, the extent to which the participants are well-suited and committed to the tasks assigned to them.
1.5 The Ombudsman also notes the Commission's explanation that the statement in the Evaluation Summary Report, i.e. that "[t]he project consortium does not include a company specialised in foundation design", was based on the fact that the three experts evaluating the proposal did not find convincing the information provided on the Danish partner, which would play a key role in implementing the project. The Ombudsman further notes that the following information concerning the Danish partner of the consortium, Techwise, was provided in the project proposal:
"Techwise is a subsidiary of ELSAM, the electrical utility of west Denmark. It is the engineering consultancy wing of that organisation, and has been intimately involved in its wind power development programme, most recently developing the 160 MW Horns Rev offshore wind farm. The civil engineering section has carried out the foundation designs, and has offered its services to carry out that part of this project. /.../ Three of the participants are world class organisations, Ge Wind, ESBI and Techwise."
1.6 The Ombudsman has carefully examined the available documentary evidence and finds that, contrary to the complainant's assertion, the rather brief information on Techwise contains no reference to the company being a specialist in the field concerned. Nor does it refer to Techwise as being, "in all likelihood", the leading company in the world in the specific field.
1.7 The Ombudsman considers that, assuming that the complainant is correct in asserting that Techwise is a specialist on foundation design and even the leading company in the world in this field, the complainant has not demonstrated that the Commission or the experts who carried out the evaluation of the DOWIAC project should have been aware of Techwise's standing regardless of the information provided by the complainant in the proposal. The Ombudsman does not, therefore, consider that the Commission committed a manifest error of evaluation in concluding, on the basis of the information contained in the proposal, that the consortium lacked a specialised foundation designer. The Ombudsman therefore finds no maladministration by the Commission.
2 The complainant's claims pertaining to correction and re-examination2.1 The complainant claims that the Commission should: 1) correct the factual errors made in its evaluation of the project proposal; and 2) re-examine the proposal as regards the award of funding. The complainant argues that the correction of the factual errors should be made particularly with an eye to the reputation of Techwise.
2.2 As regards the first claim, on the basis of the Commission's opinion the Ombudsman understands the Commission to argue that the DOWIAC proposal lacked sufficient information about Techwise. However, the Commission does not, in its opinion, appear to contest the complainant's statement that, in fact, Techwise is a specialist on foundation design and even the leading company in the world in this field.
2.3 As regards the second claim, the Ombudsman notes that the Commission argues that the DOWIAC proposal failed to reach the minimum threshold for five out of six evaluation criteria and that even a maximum mark for one or two of the evaluation criteria would not have resulted in the DOWIAC proposal being awarded Community grant. The complainant's observations do not appear to contest this argument.
2.4 In view of the above, and of the finding in point 1.7, the Ombudsman finds no ground to pursue the two claims concerned.
3 The complainant's claim pertaining to the Commission's procedures3.1 The complainant claims that a revision should be made of the Commission's procedures, in order to allow applicants to review their evaluation reports for factual errors prior to the award decision.
3.2 The Commission argues that the current provisions are sufficient to ensure that all well founded complaints about evaluations get a fair examination. The examination of well founded complaints can lead to the results being re-examined if evidence of errors or anomalies is found. Furthermore, there are already numerous checks and balances in the evaluation procedure itself which should prevent factual errors from occurring. Any additional procedure allowing a limited number of unsatisfied applicants to have their cases undergo further review would lead to inequality of treatment. The Commission is confident that the procedures used to carry out the evaluation of proposals with the help of independent experts are safe, secure and transparent. The Guidelines on Proposal Evaluation and Selection Procedures for the Sixth Framework Programme(6) require, inter alia, transparent procedures for the selection of independent experts, briefing of independent experts prior to carrying out any evaluation, an individual evaluation of each proposal by at least three experts, consensus agreement between those experts evaluating each proposal, a panel evaluation resulting in the Evaluation Summary Report for each proposal and a ranked list of proposals having passed the thresholds.
3.3 The Ombudsman notes that, according to the Guidelines on Proposal Evaluation and Selection Procedures(7), "the Commission services review the results of the evaluation by the independent experts, make their assessment of the proposal based on the advice from these experts and prepare the final evaluation results". It is thus the Commission that is responsible for the final decision on the evaluation of a project proposal and its services therefore have the opportunity to detect and correct possible manifest errors made by external experts. In the Ombudsman's view, the structure of the decision making process thus appears to contain, in itself, a mechanism for correcting manifest errors in the evaluation of proposals. Furthermore, the Ombudsman has found no evidence to cast doubt on the Commission's statement that well founded complaints about the evaluation of project proposals can lead to the results being re-examined if evidence of errors or anomalies is found. In view of the above, the existing procedures for correcting manifest errors appear to be adequate and the Ombudsman therefore finds no ground to pursue the complainant's claim in this regard(8).
4 ConclusionOn the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.
The President of the Commission will also be informed of this decision.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) The Ombudsman understands "foundation designer" to mean a party in charge of designing the sea bed foundations for the wind turbines.
(2) See http://www.cordis.lu/fp6/stepbystep/eval.htm and http://www.cordis.lu/fp6/find-doc.htm#evalproc.
(3) COM C/2003/4350.
(4) See http://www.cordis.lu/fp6/stepbystep/eval.htm and http://www.cordis.lu/fp6/find-doc.htm#evalproc.
(5) ftp://ftp.cordis.lu/pub/fp6/docs/wp/sp1/sp1_annexb_wp_200207_en.pdf.
(6) COM C/2003/4350.
(7) ftp://ftp.cordis.lu/pub/documents_r5/natdir0000070/s_1984005_20040909_140012_1984en.pdf.
(8) This analysis corresponds to the conclusions made by the Ombudsman in his decision on case 1480/2003/(BB)TN.