Strasbourg, 26 February 2008

Dear Mr S.,

On 6 November 2006, you submitted a complaint against the European Commission concerning Specific Contract No.: 2005/110223 - "Preparation of Final Adaptation Strategy for St. Kitts and Nevis in Response to the New EU Sugar Regime".

On 4 December 2006, my services informed you by telephone that your complaint had reached the Ombudsman's Secretariat without attachments and invited you to resubmit them. On the same day, I received the relevant documents.

On 21 December 2006, I informed you that, because of the volume of the file and the forthcoming holiday period, it would not be possible to complete the analysis of the admissibility of your complaint before the end of January 2007.

On 26 January 2007, I forwarded your complaint to the President of the Commission and requested a reply by 30 April 2007.

On 4 April 2007, the Commission informed me that, in order to prepare a reply to your complaint, it had had to consult its Delegation in Barbados on several occasions, and that this had rendered the interservice consultations rather lengthy. The Commission therefore requested an extension of the deadline to submit its opinion until 31 May 2007. On 23 April 2007, I granted the requested extension and informed you accordingly.

On 6 June 2007, I received the Commission's opinion, which I forwarded to you with an invitation to make observations. On 16 July 2007, I received your observations.

On 13 November and 27 December 2007, you requested information about the status of your complaint, which my services dispatched on 15 November 2007 and 16 January 2008.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complaint can be summarised as follows.

The complainant worked, as a consultant, for the consortium that was responsible for preparing a "Final Adaptation Strategy for St. Kitts and Nevis in response to the new EU Sugar Regime" (the "FAS").

On 7 November 2005, the consortium signed Specific Contract No.: 2005/110223. The consortium's field mission began on 9 November 2005 and lasted until 16 December 2005. The deadline for delivering the FAS was 24 January 2006.

On 15 December 2005, the consortium submitted a draft version of the FAS (the "draft FAS"). The comments by the contracting parties, that is, the Delegation of the European Commission in Barbados and the Eastern Caribbean ("the Delegation"), the Government of St. Kitts and Nevis ("GSKN") and the Commission, were due to be sent to the consortium leader(1) by 16 January 2006.

On 16 January 2006, the consortium leader received various sets of comments from GSKN and the Delegation. The receipt of different sets of comments was contrary to "FWC BENEF Important Message No 11, dated 17/10/2005", which provided that:

"[t]o ensure coherence and efficiency, the project manager must send the contractor a single set of documents made by the different parties involved. He should also prevent that [sic] the comments by different parties present dissenting views preventing the contractor to [sic] finalize the report."(2)

On 19 January 2006, the consortium requested clarifications on the comments from GSKN by telephone. A GSKN representative refused to answer some of the questions.

Receiving various sets of comments instead of a single consolidated version made it very difficult for the consortium to complete the FAS. Therefore, on 24 January 2006, that is, still within the contractual deadline, the consortium submitted an incomplete version of the FAS. On the same day, the Delegation made half a page of comments on the unfinished FAS.

On 16 February 2006, the consortium submitted the final version of the FAS (the "final FAS") to the Delegation, in the form of eight hard copies and one electronic version.

On 16 March 2006, the Head of Delegation wrote a letter to the consortium leader (i) confirming receipt of the final FAS, and (ii) informing it that, "[w]ithin 60 days of receiving the final report", both the Delegation and GSKN, deemed the report to be unsatisfactory and not fulfilling the Terms of Reference ("ToR"). The Delegation therefore did not accept the final FAS. The Head of Delegation invited the consortium leader to comment on the attached negative 'Assignment Performance Evaluation Sheet' within 15 days. The letter further informed the consortium leader that, pending his comments, the final payment was suspended.

On 22 March 2006, the consortium leader submitted its final invoice.

On 23 March 2006, in reply to the consultants' queries regarding the reasons for the negative assessment, the Head of Delegation, in essence, reproduced his earlier comments and again attached the comments from the Delegation and GSKN.

On 6 April 2006, the consortium leader proposed that its members revise the FAS in order to address the Delegation's outstanding concerns.

On 7 April 2006, the Head of Delegation replied that the Delegation could not accept the consortium leader's offer "given the tight deadline for the submission of the document to the Delegation by [GSKN]". The Head of Delegation further informed the complainant that the final payment would not be made and the eligible expenses would equal the advance payment which was received at the beginning of the assignment. The Head of Delegation attached, as annexes to his letter, the (i) "Elaborate Comments from Government of St. Kitts and Nevis on the draft document"; (ii) "Comments from the Commission (Directorate-General Development - "DG DEV" and EuropeAid Co-operation Office - "AIDCO") on the draft document"; (iii) "Sequence of Exchanges between the EC Delegation and the consultancy team leader on draft and final report"; and (iv) "Completed Assignment Performance Evaluation sheet".

On 24 April 2006, the consortium leader wrote to AIDCO in order to seek its assistance with respect to the completion of the contract and the final payment. The consortium leader pointed out that the Delegation's comments referred to the draft FAS, submitted on 15 December 2005, and not to the final FAS, submitted on 16 February 2006. Furthermore, these comments were contrary to the "FWC BENEF Important Message No 11, dated 17/10/2005", as they were not "consolidated". The consortium leader further pointed out that the "tight timeframe" was not its team's fault. It offered to revise the FAS at no expense to the Delegation. The consortium leader further took the view that, should the Delegation's answer be negative, it should accept its final invoice of 22 March 2006.

In its 27 April 2006 reply, AIDCO took the view that, if the Delegation were to refuse to pay, it would have to provide clear comments, point by point, about which parts of the report were not compliant with the applicable guidelines.

On 5 May 2006, the consortium leader again wrote to AIDCO and reiterated its request for advice. It further emphasised that (i) it considered that the final amount was still due; (ii) the time constraints had not been caused by the consortium; and (iii) the Delegation had refused to allow it to revise the final FAS, submitted on 16 February 2006.

On 6 June 2006, AIDCO informed the Delegation by e-mail that: (i) it understood that the consortium had not been paid because the draft FAS was not accepted; (ii) the Delegation refused the contractor's proposal to make changes due to time constraints; and (iii) those time constraints, apparently, were not its fault, but "caused by a late submission of the comments, which had to be submitted twice by the Delegation who [sic] did not submit consolidated comments directly". AIDCO called the Delegation's attention to the fact that "comments have to be consolidated", in accordance with the "instruction given through the important message nr 11". It further took the view that such constraints could have been avoided by a prompt submission of consolidated documents and urged the Delegation to take action and to "revise [its] decision".

On 7 June 2006, the Delegation replied to AIDCO stating, in summary, that: (i) the FAS lacked proper assessment in specific areas and this had been repeatedly communicated to the consultants; (ii) the comments referred to the version of 24 January 2006 and not only to the version of 15 December 2005; (iii) the comments by the Delegation, GSKN and the Commission did not lack consistency and were sent as one single document on an agreed date for the submission of comments, that is, on 16 January 2006; (iv) the consortium failed to demonstrate that it could perform the work satisfactorily, the Delegation "lost all faith" in receiving acceptable documents from it and, therefore, did not see any reason for giving it a further opportunity to revise the document; and (v) given that the work did not satisfy GSKN or the Delegation, the payment of the balance was not an option and no further work could be done on it by the consortium (as GSKN had completed it).

On 21 August 2006, AIDCO informed the consortium leader by e-mail that it had suggested that the Delegation pay the part of the report that could be used or, alternatively, deduct the time spent by GSKN from the outstanding fees.

On 14 September 2006, the consortium leader asked AIDCO for further assistance and guidance as to what it could do in order to be paid for the provided work.

On 10 October 2006, the complainant sent an e-mail to AIDCO in which he mentioned that there was incontrovertible evidence that the comments submitted to the consultants in January 2006 by the Delegation were indeed not consolidated since the comments from GSKN needed clarification and this was never received by the consultants. In the same e-mail, he also explained that, notwithstanding the above evidence, AIDCO was no longer pursuing the issue. From the complainant's perspective, this was unacceptable and was a serious procedural and contractual abuse. The complainant had suffered financial loss and damage to his reputation. He therefore asked AIDCO to let him know whether it intended to have the Delegation's rejection of the consultants' report annulled in favour of its formal acceptance, thereby facilitating the payment of all outstanding fees. The complainant concluded that, in the absence of a positive answer by 31 October 2006, he would lodge a formal complaint with the European Ombudsman.

On 6 November 2006, the complainant lodged a complaint with the Ombudsman.

The complainant alleged that the Commission, that is, the Delegation and AIDCO, failed to:

1. comply with proper procedures for submitting comments on the draft version of the "Final Adaptation Strategy for St. Kitts and Nevis in Response to the New EU Sugar Regime" report; and
2. take into due consideration the consultants' proposal for revising the "Final Adaptation Strategy for St. Kitts and Nevis in Response to the New EU Sugar Regime" report.

The complainant claimed that the Commission should:

1. annul the decision rejecting the consultants' report; and
2. pay him a total of EUR 2268.44, corresponding to his outstanding fees plus interest.

On 4 December 2006, the complainant informed the Ombudsman that the above-mentioned e-mail of 10 October 2006 still remained unanswered.

THE INQUIRY

The Commission's opinion

The Commission's opinion can be summarised as follows.

The Commission started by explaining that St. Kitts and Nevis is a member of the ACP countries and is also a signatory to the Sugar Protocol. As a signatory to the Sugar Protocol, it had, until recently, benefited from preferential access to the EU sugar market. The reform of the sugar regime required adaptations of the national sugar sector of St. Kitt and Nevis. In order to assist GSKN to face the new situation, short-term financial assistance financed by the European Commission was arranged at very short notice, namely, the preparation of an Adaptation Strategy for St. Kitts and Nevis in response to the new EU sugar regime. The Commission decided that this assignment should be awarded through a specific contract to one of the framework contractors of Lot No 1 (rural development and food safety) which had successfully participated in the tender "Multiple Framework Contract to recruit Technical Assistance for short-term expertise for [the] exclusive benefit of third countries benefiting from European Commission External Aid" (Europeaid/1119860/C/SV multi, the "Framework Contract").

Thus, in the framework of the Commission's "Action plan for accompanying measures for Sugar Protocol countries affected by the reform of the EU sugar regime"(3), the consortium leader ("Scanagri A/S Denmark"), signed, on 7 November 2005, specific contract 2005/110223 for the "Preparation of Final Adaptation Strategy for St. Kitts and Nevis in Response to the New EU Sugar Regime" with the Commission, which acted on behalf of GSKN. The complainant was among the four consultants employed by the consortium leader for this specific assignment. The contract was ruled by the General Conditions, the Global Terms of Reference of the Framework Contract, and the Specific ToR of the contract, which specified the services to be performed by the contractor. According to the ToR, the assignment was divided in two phases: (i) identifying a specific menu of options for an effective adaptation strategy to address the impact of the reform at the economic, social and environmental levels; and (ii) obtaining a consensus at national level on a given adaptation option and proposed focus of assistance for 2006, and developing it into a fully-fledged single strategy. In accordance with the contract and Article 28 of the General Conditions, a pre-financing payment of EUR 82 442 was effected. This payment represented 60% of the total value of the contract value, namely, EUR 137 404.

Chronological background(4)

On 19 December 2005, that is, within the initially agreed deadline, the Delegation sent to the consortium leader its initial comments, detailing the draft strategy's shortcomings.

On 22 December 2005, the consortium leader agreed to postpone the submission of both the Delegation's comments on the draft report and of the final report, until 16 and 20 January 2006 respectively. The completion date of the assignment was thus postponed from 23 December 2005 to 30 January 2006.

On 13 January 2006, GSKN sent a letter with its review on the draft to the Delegation. It took the general view that "the quality of the draft report fell well below what would be expected of such a significant document". In points 24 and 25 of its letter, GSKN emphasised that:

"[the] report fail[ed] to correctly identify and bring together in a coherent way the elements of an appropriate adaptation strategy (...) if the document [were] accepted and implemented as [was] it [would] significantly increase the chaos and confusion (...) In light of the above, St Kitts & Nevis [was] now urgently putting forward its concerns regarding the draft adaptation strategy document to the EC and would wish to emphasise that the report [did] not accurately reflect either the country or its needs".

On 16 January 2006, as agreed previously with the consortium leader, the Delegation sent to the consortium leader a full set of documents from GSKN and the Commission's Headquarters, together with its previous comments of 19 December 2005.

On 17 January 2006, the consortium leader asked the Delegation for clarifications, which it provided on 18 January 2006.

On 24 January 2006, the consortium leader submitted the revised report by e-mail and stated that the hard copies of the report would be sent on 30 January 2006. The consultants were not able to provide an exhaustive assessment of the economic diversification options, although this was required by the ToR. The Delegation therefore sent to the consortium leader a list of areas that needed to be improved, notably a "further analysis of debt". It further pointed out that the submissions it received did not provide any explanation as to why such areas had not been addressed.

On 26 January 2006, the consortium leader sought to explain why some areas could not be addressed and disagreed with the Delegation's assessment with respect to other areas.

Already at this stage, GSKN decided to take charge of preparing the strategy independently of the consortium, given that the deadline for submitting the document to the Commission was 28 April 2006.

On 14 March 2007, further to the Commission's reassessment of the quality of the services rendered, the Commission made, by letter, a proposal for an amicable solution and proposed to make an additional payment of EUR 26 750 to the consortium leader in order to settle the matter.

On 20 March 2007, the consortium leader agreed to the new terms of payment accepting this as a final resolution of the matter.

The Commission's position on the complainant's allegations and claims

(1) The Commission emphasised that it had no contractual relationship with the complainant, since the parties to the contract were the Commission and the consortium. The complainant was a consultant employed by the consortium leader.

(2) The Commission took the view that the "Framework Contract's important message nr 11" was merely a recommendation(5). According to the Commission, 'Important messages' were not binding and had the same value as the "Frequently Asked Questions" (or "FAQs"). These messages were drafted by AIDCO in order to ensure an efficient and consistent implementation of the Framework Contract. No clause applicable to the specific contract in question provided for any obligation for the Contracting Authority to give consolidated comments on the report. Article 27(2) of the General Conditions only referred to "comments". According to the Commission, it was essential that comments made by the different parties be sent simultaneously and be consistent.

The Commission acknowledged that the approach and the degree of detail of GSKN's comments, on the one hand, and of the Commission's comments, on the other hand, differed to some extent. This however did not, in the Commission's opinion, imply the existence of any dissenting views but merely reflected different ways of conveying dissatisfaction. GSKN sent general remarks on 13 January 2006 to the Delegation and the Commission gave a detailed list of shortcomings and subject-matter to be covered. Both the Commission and GSKN agreed with respect to the substance, that is, that the report lacked an in-depth analysis and was rather a "needs assessment" than a strategy. Its structure and language could be improved; there were areas left uncovered; and not enough proposals had been made.

The Commission further took the view that, in the correspondence exchanged with the consortium leader, AIDCO merely confirmed the general principles involved, such as the need to explain the rejection of the report or the principle of transmission of all the comments together.

(3) The Commission pointed out that there was no obligation in the specific contract for the Contracting Authority to allow for the revision of a report that had been rejected. In dealing with the request for revision, the Commission therefore enjoyed a margin of discretion in assessing whether or not such a revision was appropriate.

The Commission regretted that the complainant was under the impression that the report and its content had been fully accepted without reservations, but also pointed out that at no time did it hide its dissatisfaction. On the contrary, its messages conveyed the idea that the overall analysis was very weak and that there was still much room for improvement. The final version of the document received on 24 January 2006 was not considered to be a significant improvement on the version submitted previously in December 2005. The consultants' further message of 26 January 2006, sent in reply to the Delegation's request for explanations, suggested that they could do nothing further to address the issues that the Delegation and GSKN had raised. When, on 6 April 2006, the Delegation received the consortium's request for the revision of the draft strategy, it was considered pointless to continue an already prolonged process which was not producing an acceptable final output since (i) the consortium leader itself had acknowledged its unwillingness to address some of the suggested amendments and (ii) very little time remained before the deadline imposed on GSKN was to expire. In its letters of 7 April and 7 June 2006, the Delegation duly justified its decision not to give a further opportunity to the consortium to revise the draft strategy.

GSKN had to submit its Strategy by 28 April 2006, so it would have been neither practical nor realistic for the consultants to have been allowed to make further attempts to improve the document, after they had already made it clear that they did what was possible given the circumstances. By letter dated 24 January 2006, the Delegation made it clear to GSKN that failure to respect the deadline imposed by the Commission to present its strategy meant that it would lose the financial support measures, set out in the Sugar Protocol, for 2006. On 13 February 2006, GSKN informed the Delegation that it had assumed the responsibility to write the document itself.

(4) The Commission rejected, in summary, the complainant's claims. It emphasised that, in its letters to the consortium leader of 16 and 23 March; 7 April; 7 June; and 12 September 2006, it had detailed its reasons for its decision to reject the consultants' report and not to accept a further revision of the draft strategy. Considering that the consultants had been unable to respect the ToR, the Commission was obliged to take a negative decision, in accordance with Article 27(2) of the General Conditions.

It further pointed out that, in light of the reasons set out above, the Delegation estimated that the advance payment of EUR 82 442 covered the entire reimbursables and 42% of the professional fees. Although the final report was not acceptable, the Commission took into account that the consortium leader met all the agreed deadlines and that the consultants had been willing to revise the final report, although that had not been allowed by the Delegation. In order to arrive at a final payment that was acceptable to the consortium leader, the Delegation had therefore decided to increase the payment for the professional fees from only 42% to 70%, the latter figure amounting to EUR 65 828. The Commission had decided to pay the difference between 42% and 70% of the professional fees (that is, EUR 26 750) after reassessing the value of the rendered services. The consortium leader had agreed to this revised proposal.

The Commission had thus been open to an amicable settlement with the complainant's employer and could not be held responsible for any payments potentially due to the complainant by the latter. These payments, if justified, were under the overall responsibility of the consortium leader. Therefore, if the complainant were to consider that he had been treated unfairly, the Commission would suggest that he contact the consortium leader with which he had a contractual relationship.

The Commission therefore concluded that, after the reassessment of the file and having settled the matter with the contractor, of which the complainant was a consultant, it considered that its services have acted properly and had respected the rules and principles binding upon it. In the Commission's view, no instance of maladministration had thus taken place.

The complainant's observations

The complainant's observations can be summarised as follows.

The complainant, first, took the view that the Commission's opinion contained a significant number of errors and omissions and, in summary, failed to address the key points of his complaint. More specifically, it had, in the complainant's opinion, (i) failed to address the complainant's allegation that the Commission had breached its own procedures; and (ii) shown that, in rejecting the report, the Delegation was seeking to use the consultants as scapegoats for its own errors by (a) commissioning the consultancy (specific contract 2005/110223) without adequate preparation, and (b) failing to manage the contract effectively in relation to the deadline for GSKN's submission of the Adaptation Strategy.

The complainant further stated that, although it had been rather uncertain as to precisely what the Delegation and GSKN were expecting to be delivered, the consultants worked consistently and in good faith in order to meet the requirements with respect to the completion of the report.

In the complainant's view, the Commission's opinion had made it clear that, at the very time when the consultants were attempting to complete the report in order to meet the revised deadline of 30 January 2006, GSKN "decided to take charge of preparing the strategy independently without any further support from consultants given the deadline for submitting the document to the EC was 28 April 2006." It had been made clear that this decision had been prompted by the Head of Delegation's letter of 24 January 2006 to GSKN, which drew its attention to the time constraints. GSKN's letter of 13 February 2006 made no reference to the acceptability of the consultants' report, but rather referred to its initiative to redraft the strategy in response to the advice given by the Head of Delegation.

The Head of Delegation's letter of 7 April 2006, in which it was stated that the Delegation "cannot accept the [consortium leader's] offer for the consultants to make further revision to the strategy at this stage given the tight deadline for the submission of the document to the Delegation by the GSKN", failed to clarify that all further input from the consultants had been rendered irrelevant by the decisions taken in January 2006 without their knowledge.

The complainant further pointed out that there was no reference in the Commission's opinion to the fact that the Delegation had sent, on 20 January 2006, that is, separately from the main set of comments sent on 16 January 2006, a set of comments from AIDCO on the draft FAS to the consultants. The Commission also did not take any stance on the complainant's statements that, in summary, it had been recognised by the Delegation that the comments by GSKN needed clarification. Had the Delegation not been aware of the basis for GSKN's criticism, it could not possibly have known whether the reasons for this criticism were consistent with its own comments or with those of the Commission. Therefore, the comments could not have been integrated.

The complainant further referred to the Commission's statements that the consultants had failed to respond to its request for "further analysis of debt". According to the complainant, it had been precisely with respect to this point that the Delegation had referred the consortium to GSKN, which subsequently proved either unwilling or unable to give any clarification, a fact acknowledged by the Delegation in an e-mail dated 24 January 2006. Even in its more extended comments submitted after the report had been rejected, GSKN had failed to elaborate on this issue, simply asserting that the strategy "d[id] not take on board the issue of indebtedness", which, in the complainant's view, was factually untrue.

The Commission's view that the "FWC important message no. 11" was not binding on the Contracting Authority was at variance with the view expressed by AIDCO in its e-mail of 6 June 2006 to the Delegation. Since, in any event, the Commission accepted that "what [was] essential [was] that comments made by the different parties involved [were] sent together at the same time and [were] consistent", its actions clearly failed to meet these criteria.

The complainant further expressed the view that the Commission had wrongly implied that the consortium leader's reply of 26 January 2006 "conveyed that they could do nothing further to address the issues (...) raised". He pointed out that (i) on a number of points, the message stated that the consortium needed further clarification concerning what was requested by the Commission; and (ii) it concluded by indicating the team's willingness to respond to requests for further changes. Hence it could not be claimed that the decision not to pursue outstanding issues further was prompted by any refusal of the consultants to co-operate. Rather it was evident from other statements and documents that the decision not to seek further clarifications with respect to outstanding issues relating to the consultants' report was taken because the document had become irrelevant for other reasons. Furthermore, the consortium leader had also referred to the need for clarification of the request for "more elaboration and analysis" concerning macroeconomic issues in the comments, which were submitted by the Commission on 16 January 2006. No such clarification was received until after the Delegation had informed the consortium that the report had been rejected and that it would accept no further revisions to it. Had the opportunity been given to the consortium leader to respond to this belated clarification, the consultants would have pointed out that the suggestion that they should have given "an assessment of macro-economic impacts [of the changes in the EC sugar regime] in the short, medium and long term (...) in accordance with the ToR" had become redundant in the case of St. Kitts, given that its sugar industry had already been closed down in July 2005.

The complainant thus concluded that the Commission's opinion strengthened the grounds for believing that this decision was taken for reasons other than the quality of the report or the performance of the consultants.

The complainant added that the Commission had correctly noted that liability for payment of his fees lay with the consortium leader. However, its justification for not paying him in full was based on the rejection of the report by the Delegation and the associated decision not to pay the full contracted fees. Hence, it was necessary to annul this rejection and to confirm acceptance of the report in order to permit payment of all outstanding fees in full. The contractors had agreed to a settlement with the Commission, which was reached after the complainant lodged his complaint with the Ombudsman, based on an increase in the proportion of fees payable that was higher than the one originally offered. However, the complainant was not party to this agreement and therefore saw no reason to accept less than the full amount claimed in his complaint, to which further interest should now be added in view of the prolonged delay in its processing.

THE DECISION

1 The complaint

1.1 The complainant was a consultant employed by a consortium of consultants contracted by the European Commission to draft a "Final Adaptation Strategy for St. Kitts and Nevis in response to the new EU Sugar Regime" (the "FAS"). After receiving the consortium's report, the Commission's Delegation in Barbados and the Eastern Caribbean ("the Delegation") and the Government of St. Kitts and Nevis ("GSKN") made a negative assessment of the consultants' work. The Delegation therefore informed the consortium's leader of its intention to reject it.

The complainant alleged that the Commission, that is, the Delegation and AIDCO, failed to:

1. comply with proper procedures for submitting comments on the draft version of the "Final Adaptation Strategy for St. Kitts and Nevis in Response to the New EU Sugar Regime" report; and
2. take into due consideration the consultants' proposal for revising the "Final Adaptation Strategy for St. Kitts and Nevis in Response to the New EU Sugar Regime" report.

The complainant claimed that the Commission should:

1. annul the decision rejecting the consultants' report; and
2. pay him a total of EUR 2268.44, corresponding to his outstanding fees plus interest.

1.2 The Commission stated, in summary, that (i) it had no contractual relationship with the complainant; (ii) the consortium's leader had agreed, on 20 March 2007, to its proposal for settling the matter by making a payment of EUR 26 750, thus increasing the payment of the consortium's professional fees from 42% to 70%, that is, to EUR 65 828; and (iii) should there be any outstanding fees, the complainant should address the consortium's leader. Moreover, according to the Commission, (iv) there were no contractual provisions that would provide for a compulsory consolidated version of the comments; what existed was only a recommendation; and (v) the Delegation had no obligation to review a report that it and the GSKN had considered to be unsatisfactory.

1.3 The Ombudsman, first, notes that, in summary, the complainant does not dispute that the parties that have signed the contract were the Commission and the consortium leader. The Ombudsman therefore notes that, in summary, the complainant accepts that there is no contractual relationship between himself and the Commission and that such a relationship exists between the consortium as such and the Commission.

1.4 In the context of the complainant's allegations, which appear to concern in fact the contractual relationship between the Commission and the consortium, the Ombudsman points out that, as regards the complaints concerning contractual relationships in general, he is justified in limiting his inquiry to examining whether the Community institution or body has provided him with a coherent and reasonable account of the legal basis for its actions and why it believed that its view of the contractual position is justified. In this respect, the Ombudsman notes the Commission's explanation that, in summary, (i) there were no contractual provisions providing for a compulsory consolidated version of the comments; what existed was a recommendation; and (ii) the Delegation had no obligation to review a report that had been considered to be unsatisfactory.

1.5 The Ombudsman notes the complainant's position that (i) GSKN's comments, submitted by the Delegation on 16 January 2006, needed clarification, which was never provided to the consortium; and (ii) on 20 January 2006, that is, after the Delegation and GSKN had sent the main set of comments, the Delegation also sent a set of comments from AIDCO to the consortium. However, the Ombudsman considers that the complainant has not succeeded in demonstrating that the Commission's explanations that (i) there were no contractual provisions that provided for a compulsory consolidated version of the comments, but only a recommendation; and that (ii) the Delegation had no obligation to review a report that had been considered to be unsatisfactory, were manifestly unreasonable. Therefore, the Ombudsman takes the view that no further inquiries are justified as regards the complainant's allegations.

1.6 As regards the Commission's statement that, in summary, the "Important Message Nr. 11" was not binding and had the same value as a Frequently Asked Question ("FAQ"), the Ombudsman notes that, according to the Commission itself, that message was "a recommendation". The Ombudsman also finds it useful to point out to the Commission therefore that, should it establish such recommendations, it is reasonable that contractors expect it to follow them. In the Ombudsman's view, this is all the more so when, according to the Commission's own words, such a recommendation is drafted "in order to ensure an efficient and homogeneous implementation of the Framework Contract." In the Ombudsman's view, failure to take into due consideration the legitimate expectation of contractors that the Commission follow its own recommendations, could not only create uncertainty in their relationship with the Commission but also seriously undermine citizens' trust in EU institutions.

1.7 However, in the present case, the Ombudsman notes that, on 14 March 2007, that is, during the course of the Ombudsman's inquiry, the Head of Delegation addressed a letter to the consortium leader proposing a financial settlement to the contract(6). The Ombudsman also notes that, on 20 March 2007, the latter accepted the financial settlement as the last and final payment(7). In light of the above financial settlement, the Ombudsman considers that no further inquiries are justified into the compatibility of the Commission's actions with its recommendation "Important message Nr. 11".

1.8 As regards the complainant's claims, the Ombudsman understands that, in the complainant's view, the Commission's alleged actions in the framework of its contractual relationship with the consortium caused him financial loss and damaged his reputation.

1.9 The Ombudsman notes the complainant's position that it was the Delegation's letter of 24 January 2006 to GSKN, calling the latter's attention to the tight deadline for presenting the FAS to the Commission on penalty of losing EC financial assistance, which prompted GSKN to prepare the strategy independently of the consortium. In this respect, however, the Ombudsman also notes the Commission's statements that it took into consideration, for the purposes of the financial agreement mentioned in point 1.7 above, the fact that the consortium had respected all the established deadlines and was willing to amend the report. The Ombudsman welcomes this initiative and considers that the Commission has taken steps that have, in summary, had the effect of reducing the financial impact which its negative assessment of the consortium's work had produced.

1.10 The Ombudsman also trusts that the above financial settlement, which consists of increasing the payment of the consortium's professional fees from 42% to 70%, has had a positive impact on the complainant's original claim for payment of his outstanding fees plus interest. In light of the foregoing, the Ombudsman therefore considers that no further inquiries into the complainant's claims are justified.

2 Conclusion

2.1 For the reasons given in points 1.5, 1.7 and 1.10 above, the Ombudsman considers that no further inquiries are justified into the complainant's allegations and claims. The Ombudsman therefore closes the case.

The President of the Commission will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Commission identified the consortium leader as the company named "Scanagri A/S Denmark".

(2) The Ombudsman understands "project manager" to correspond to an official of the Delegation.

(3) Regulation (EC) No 266/2006 of the European Parliament and of the Council of 15 February 2006 establishing accompanying measures for Sugar Protocol countries affected by the reform of the EU sugar regime, OJ 2006 L 50, p. 1.

(4) The Ombudsman notes that the Commission's chronological references largely reproduce the references made by the complainant. In this section, therefore, the Ombudsman summarises the chronological references that (i) have not been mentioned by the complainant; or (ii) differ from the references made by the complainant and are relevant to the present inquiry.

(5) According to the Commission, the "Framework Contract's important message nr 11" reads as follows: "to ensure coherence and efficiency, the project manager must send to the contractor a single set of comments made by the different parties involved. He should prevent that [sic] the comment [sic] by different parties present dissenting views preventing the contractor to [sic] finalise the report."

(6) The letter, attached by the Commission to its observations and forwarded to the complainant for his observations, includes the following statements: "Since our [exchange of correspondence starting with the Delegation's letter dated 16 March 2006 communicating to the consortium leader the rejection of the final report and the non-payment of the balance], the matter has been raised with our Commission HQ and the European Ombudsman. The latter has not reached a conclusion yet to his investigations. However, and as a gesture to close the dispute in an amicable way, I am ready to propose to you the following arrangement: The consultancy contract was signed for a maximum amount of 137,404€ of which the reimbursables were 43,364€ and the professional fees 94,040€. You received a payment of 60% of the contract amount, namely 82,442€. That covered the totality of the reimbursables and 42% of the professional fees. I will instruct my services to carry out a final payment of 26,750€ that would raise the percentage of accepted professional fees to 70%. Please confirm that you agree and would accept this payment as final payment."

(7) The letter, attached by the Commission to its observations and forwarded to the complainant for his observations, includes the following statements: "I am pleased to inform you, that I have had the opportunity to discuss your offer for settlement of our dispute regarding the final payment with the Director of the company, which as [a] member of our (...) [c]onsortium was in charge of the actual implementation of the specific contract 2005/110223. We have come to the conclusion, that we can agree to your proposition and accept your offer to make the payment of € 26,750 and that we can accept this amount as being the last and final payment on this specific contract. Please accept my sincere apology for all inconvenience caused."