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Decision in case 1884/2017/JF on the European Commission’s failure to reply clearly to questions relating to the evaluation of a project submitted under a Horizon 2020 call for proposals

The case concerned the European Commission’s failure to reply clearly to a number of questions about the evaluation of a project proposal submitted in response to a call for proposals under Horizon 2020, the EU Research and Innovation Programme. The Commission provided the necessary replies during the Ombudsman’s inquiry and the matter was settled.

However, in the course of the inquiry the Ombudsman came across a matter not raised in the complaint, namely how the Commission deals with conflicts of interests of experts who evaluate project proposals. The Ombudsman found the Commission’s way of dealing with such conflicts could be improved. She therefore made a suggestion for improvement.

Background to the complaint

1. The complainant represents a consortium of 25 members that submitted a project proposal in reply to a call for proposals under Horizon 2020, the EU Research and Innovation Programme. After it learned that it had not been selected, the consortium put a number of questions to the Commission about the evaluation process. As it was dissatisfied with the Commission’s replies, the consortium complained to the Ombudsman.

The inquiry

2. The Ombudsman opened an inquiry into the Commission’s failure to answer some of the complainant’s questions. The complainant wanted to know when a specific meeting had taken place, who was/were the Commission project officer(s) present, and whether any of the project officer(s) had been replaced for that meeting and if so, why.

3. During an inspection meeting held with the Ombudsman’s inquiry team, the Commission explained that the meeting in question took place on 6 and 8 June 2017 and that the same project officer was present on both days. It also replied to the additional questions the Ombudsman put to it in advance of the meeting.

4. The Commission has thus settled the matter raised by the complainant.

Conflict of interests affecting an expert

5. The Ombudsman came across the following matter in the course of the inquiry: one of the experts selected by the Commission to evaluate the project proposals was conflicted because that person had a professional relationship with the consortium that had submitted one of the project proposals. When the Commission became aware of the conflict of interests, it replaced that expert (‘expert A’) with another expert. Expert A was therefore not involved in the evaluation of the project proposal on which expert A had a conflict of interests because there was a risk of that expert favouring that proposal unduly. However, the Commission allowed expert A to participate in the evaluation of the only other project proposal that had been shortlisted[1].

6. The Commission stated that the applicable rules allowed it to retain expert A in the evaluation of the competing project proposal[2]. It justified retaining expert A, essentially, on grounds of available expertise. According to the Commission, even a conflicted expert may participate in an evaluation in certain circumstances.

7. The Ombudsman notes that if expert A was conflicted in relation to one project proposal, expert A was equally conflicted in relation to the competing project proposal. There was a risk that expert A could improperly influence the evaluation of the competing project proposal, by giving an unfavourable assessment. Moreover, the very fact that expert A was replaced for one of the evaluations shows that there was available expertise in this case.

8. It is therefore not clear to the Ombudsman why expert A was retained in this case. Given, however, there was no concrete prejudice, it is not necessary to pursue the matter for the purposes of this inquiry.

9. For the future, however, it would be useful to understand better from the Commission what type of circumstance might exist that would allow a conflicted expert to participate in an evaluation. The Ombudsman’s view is that experts who are found to have a conflict of interests in an evaluation process should be excluded from the evaluation of all competing proposals. She makes a suggestion for improvement below.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

The Commission answered the complainant’s questions, thus settling the matter raised by the complainant.

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

Suggestion for improvement

Experts who are found to have a conflict of interests in an evaluation process should be excluded from the evaluation of all competing proposals. If there are special circumstances preventing this in a particular case, the Commission should set out in detail what they are. The Commission should also explain to the Ombudsman what type of special circumstances it has encountered in this area.

The Ombudsman invites the Commission to respond to this suggestion by 31 May 2019.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 26/11/2018

 

[1] This competing project proposal was the successful one. There was, therefore, no prejudice from the conflict of interests identified in this case.

[2] See Article 2.1 of Annex I to the ‘H2020 Programme, Model Contract for experts, Version 2.0 1 April 2017’, available at http://ec.europa.eu/research/participants/data/ref/h2020/experts_manual/h2020-experts-mono-contract_en.pdf#page=27)  

The expert must perform his/her work impartially and take all measures to prevent any situation where the impartial and objective implementation of the work is compromised for reasons involving economic interest, political or national affinity, family or emotional ties or any other shared interest (‘conflict of interests’). The following situations will automatically be considered as conflict of interest... if s/he [for example] was involved in the preparation... of the proposals... The following situations may be considered as a conflict of interest if the responsible [Commission] staff so decides... in view of the objective circumstances, the available information and the potential risks: [for example] (a) employment of the expert by one of the applicants (or linked third parties or other third parties involved in the action) in the last three years;... In this case, the responsible [Commission] staff may decide... that the expert cannot act as observer for the evaluation sessions concerned and, if necessary, to replace him/her...” (emphasis added) The Ombudsman notes that there appear to be other versions of the Model Contract for experts that provide for slightly different formulations of this provision.