Strasbourg, 21 February 2005

Dear Mr X.,

On 12 and 23 February 2004, you made a complaint, on behalf of a company, against the European Commission to the European Ombudsman concerning the proposal submitted online on 13 January 2004 in the framework of the call for proposals for indirect RTD.

On 9 March 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 7 May 2004. I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you.

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

THE COMPLAINT

According to the complainant, the facts can be summarised as follows:

The company, where the complainant is working as technical manager, took part in a call for proposals for indirect RTD actions under the specific programme for research, technological, development and demonstration. The proposal was made in collaboration with 11 European institutes or bodies and dealt with the contribution of new technologies to the Common Agricultural Policy.

The complainant wished to submit his proposal online, as encouraged by the Commission. The connection was established on 13 January 2004 at 4.50 p.m. after several attempts. However, the system encountered breakdowns. Consequently, the download of the proposal could not be finished on time and the proposal could apparently not be transmitted in full. The closing date was 13 January 2004 at 5 p.m.

The complainant called the Helpdesk Office; he was advised to send the proposal immediately by e-mail. After the transmission of the e-mail, he called again and was told that the e-mail had been received but after 5 p.m.

The complainant subsequently contacted the official in charge of the Helpdesk Office to explain the problems encountered. The official requested clarification on where the proposal was created because the timestamp on the proposal was 5.01 p.m. The complainant indicated that the proposal was created in France from his computer and that his computer clock was 6 minutes in advance.

On the same date, an official of Directorate General for Research was also contacted. On 14 January 2004, the latter replied that no extenuating circumstances could be accepted and that there was no possibility to consider a proposal eligible if it had been received after the deadline. In a second reply dated 4 February 2004, he indicated that the difficulties encountered by the complainant were due not to a technical failure of the Commission's system but to transmission problems for which the Commission cannot be held responsible. He added that the only document which could be accepted from the complainant was the one sent on 12 January 2004. According to the complainant, this version is a simulated version which was assembled with wrong figures and was sent to test the system.

The complainant argues that, on 13 January 2004, the online submission of his proposal started before the deadline for submission and was taken into account by the Commission's system. In substance, therefore, the complainant alleges that the Commission was wrong to reject the proposal that he sent by e-mail on 13 January 2004. He claims that the proposal which was taken into account by the Commission and which was submitted online on 12 January 2004 should be replaced by the proposal sent by e-mail on 13 January 2004.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made in summary the following points:

The company intended to submit a proposal in the framework of a call for proposals. The Commission's system was tested on 12 January 2004 by the company and the proposal that it sent was registered. The proposal sent electronically by the company on 13 January 2004 was rejected because it had been sent after the deadline.

Checks had shown that the technical problems encountered by the company did not come from the electronic submission system (EPSS): five minutes before the closure of the call, the system was busy at only 77 %. Moreover, 21 proposals, submitted via EPSS, were received successfully during the last quarter of an hour.

The problems encountered by the company are probably due to a congestion of the transmission network over which the Commission has no control. This case could be compared with the hypothetical submission of a proposal via an express courier delivery company, which arrived at the Commission after the expiry of the deadline because of traffic jams. The proposal would have been declared ineligible.

The Guide for Proposers of 29 September 2003 clearly states that "Proposers are reminded that it is their own responsibility to ensure the safe delivery of their proposal. (...) Proposals arriving at the Commission after the deadline are not eligible for evaluation. No extenuating circumstances will be taken into consideration. (...) Failure of your proposal to arrive in time for any reason, including communications delays, is not acceptable as an extenuating circumstance."

As regards the proposal sent by e-mail on 13 January 2004, the Commission cannot accept it, as according to the Guidelines on Proposal Evaluation and Selection Procedures and the call for proposals, proposals submitted by fax or e-mail will be excluded.

The eligibility problems encountered by the company were examined by the eligibility review committee at the end of January. It concluded that the proposal sent via EPSS on 13 January 2004 and the one sent by e-mail on the same date were ineligible for the above-mentioned reasons and that only the proposal submitted on 12 January 2004 was eligible.

The Commission considers that, in view of the preparatory work involved in making a submission to such a call for proposals, it appears risky to intend to send electronically a proposal 10 minutes before the end of the call, all the more so if the complainant’s computer clock was not checked beforehand.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Alleged wrongful failure to take into account a proposal

1.1 The complaint was made on behalf of a company, which took part in a call for proposals for indirect RTD actions under the specific programme for research, technological, development and demonstration. The company wished to submit the proposal online and sent a dummy version on 12 January 2004 to test the system. To send the final version, a connection was established on 13 January 2004 at 4.50 p.m. However, the system encountered breakdowns and the download of the proposal could not be finished on time. The complainant then called the Helpdesk Office and was advised to send the proposal immediately by e-mail. He did so, but his submission was rejected as having been received after the deadline. The complainant argues that the online submission of his proposal started before the deadline for submission and was taken into account by the Commission's system. The complainant alleges that the Commission was wrong to reject the proposal sent by e-mail on 13 January 2004. He claims that the proposal which was taken into account by the Commission and which was submitted online on 12 January 2004 should be replaced by the proposal sent by e-mail on 13 January 2004.

1.2 The Commission argues that the problems encountered by the complainant in submitting a proposal online on 13 January 2004 did not come from the electronic submission system (EPSS), but are probably due to a congestion of the transmission network over which the Commission has no control. The Commission also argues that it cannot accept the proposal sent by the complainant by e-mail on 13 January 2004 because proposals submitted by e-mail are ineligible. The eligibility review committee examined the problems encountered by the complainant and concluded that only the proposal submitted on 12 January 2004 was eligible.

1.3 The Ombudsman understands from the complaint and the Commission's opinion that the complainant submitted three proposals: one on 12 January 2004 via the EPSS and two on 13 January 2004, of which one was sent via the EPSS and the other by e-mail. The Ombudsman notes that according to the Guide for Proposers for Specific Support Action, which applied to the present call for proposals:

"To be eligible, proposals must be received by the Commission before or on the deadline at the address specified in the call. Proposers are reminded that it is their own responsibility to ensure the safe and timely delivery of their proposal".

He also notes that, according to the call for proposals, the deadline for receipt of proposals was 13 January 2004 at 5 p.m.

1.4 From an examination of the file, it appears that the complainant’s proposal submitted via the EPSS on 13 January 2004 was received after the deadline, as was the one sent by e-mail. As regards the former proposal, the Ombudsman does not consider that a proposal submitted electronically can be considered as having been received until the process of electronic transmission to the recipient has been completed. The Ombudsman also notes that the complainant has not contested the Commission’s argument that the EPSS was not the source of the delays encountered by the complainant in submitting the proposal online.

As regards the proposal submitted by e-mail, the Ombudsman notes that the Commission has not contested the complainant’s argument that the Helpdesk advised the complainant to send the proposal by e-mail. In these circumstances, the Ombudsman is not persuaded that it would be good administration for the Commission to rely on the provisions of the Guidelines on Proposal Evaluation and Selection Procedures and the call for proposals stating that: "Proposals for indirect RTD actions submitted by email or by fax will be excluded" as justification for excluding the complainant’s proposal. The Ombudsman notes, however, that the e-mail arrived after the deadline and considers that the Commission was entitled to exclude it for that reason, given that the EPSS was not the source of the delays encountered by the complainant in submitting the proposal online.

1.5 The Ombudsman therefore takes the view that the Commission’s rejection of the complainant’s proposal did not constitute an instance of maladministration.

2 Conclusion

On 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