The background to the complaint

1. In July 2011, a consortium concluded a service contract with a European Union Delegation to Bangladesh (the Delegation) for a security project. A member of the consortium was nominated as the contractor. The contractor then appointed the complainant as team leader of the project.

2. In January 2012, the Delegation asked the contractor to replace the complainant as team leader as it considered that he was not performing his duties properly. By letter of 16 January 2012, the contractor gave a 30-day notice to the complainant and asked him to leave the project by 16 February 2012. The complainant left the project on 6 February 2012.

3. In October 2012, the complainant wrote to the Delegation to contest his replacement as team leader.

4. In March 2013, the complainant complained to the European Ombudsman that the Delegation had failed to respond to his letter. The Ombudsman opened a simplified procedure with a view to obtaining a reply from the Delegation. Further to the Delegation's specific request of 6 June 2013, the Ombudsman redirected the inquiry towards the European Commission. When the Commission failed to reply to the complainant within the simplified procedure, the Ombudsman opened a full inquiry into the matter.

The inquiry

5. The Ombudsman opened an inquiry into the complaint and identified the following allegation and claim:

1) The Commission wrongly decided to replace the complainant as team leader.

2) The complainant should be financially compensated for the loss he sustained.

6. In the course of the inquiry, the Ombudsman received the opinion of the Commission and, subsequently, the complainant's observations on it. In conducting her inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

Allegation that the Commission wrongly decided to replace the complainant as team leader of the Project

Arguments presented to the Ombudsman

7. The complainant alleged that the Commission wrongly decided to replace him as team leader, given that it had no grounds to conclude that he was not performing his duties. In addition, the Commission relied on Article 17(2) of the General Conditions[1], which provides that the Commission can order the replacement of a member of staff if it considers that he or she is inefficient or does not perform the duties properly. However, the complainant stated that he did not fall within the category of "personnel of the Contractor". In addition, he argued that since there was no contractual relationship between him and the Commission, the latter could not request his replacement. In any case, even if he had a contractual relationship with the Commission, it could have ordered his replacement only if the contractor had been in breach of the contract, and, in order to make good the breach, the contractor had proposed to replace him. Furthermore, the Delegation's letter of 16 January 2012 was deficient, as it did not sufficiently justify the request for his replacement. It also failed to request the complainant's observations. Moreover, the Commission's request appeared to be based on the evaluation of the first draft of a report, which he had submitted only informally. The complainant finally argued that a Commission staff member commented negatively about his competence to the contractor prior to the commencement of the project and that it was this criticism that must have led the Commission to decide that he should be replaced.

8. In its opinion, the Commission said that it had no contractual relationship with the complainant[2] and that he should therefore rather address his grievances to the contractor directly.

9. However, and regardless of the absence of a contractual link, the Commission insisted that it correctly applied the relevant articles of the General Conditions. Indeed, on the basis of Article 16(1), the complainant fell within the category of personnel and thus the Commission rightly resorted to Article 17(2) of the General Conditions, which allows it to request the replacement of a member of personnel if and when it considers that that person is not performing his/her duties properly.

10. Contrary to the complainant's assertion, the prior determination and notification of a breach of contract by the contractor was not a prerequisite for the Commission to request the replacement of the team leader.

11. As regards the requirement, contained in Article 17(2) of the General Conditions, that a request for replacement be sufficiently justified and explained, the Commission stated that its letter of 16 January 2012 constituted a written request which contained the justification and adequate reasons for its request for replacement. In that letter, the Commission also asked the contractor to invite the complainant to submit observations on its request. The contractor then informed its services that the complainant did not wish to submit observations and left the project earlier than requested.

12. The Commission also pointed out that it had based its evaluation of the complainant's performance on the final inception report, and not on the draft report, as the complainant claimed in his complaint to the Ombudsman. The inception report was, however, so poorly drafted that even after the contractor made substantial improvements, its content was unacceptable. The Commission asserted that it was not the format of the inception report, but its actual content which it considered unacceptable.

13. In fact, according to the Commission, the inception report contained a number of basic misunderstandings in at least three areas, concerning the purpose of the service contract. These areas, which are important to ensure the successful implementation of the contract, were: the training of beneficiaries, the role of the Technical Assistance, Food, Livelihood Security - Project Task Force and Implementing Partners, and the monitoring requirements. In addition, the Commission found that the complainant did not sufficiently interact with the beneficiary of the contract and the Delegation. This prejudiced the quality of the project and the deadline for its implementation. Thus, these reasons justified the Commission's request for replacement. Moreover, the contractor fully agreed with the Commission's assessment of the complainant's performance and with its request for replacement.

14. As regards the allegedly negative comments about the complainant expressed by a Commission staff member prior to the commencement of the project, the Commission noted that the complainant did not submit any evidence in this regard. As far as the Commission was aware, no such negative comments were made about the complainant or his competence.

15. As regards the complainant's claim for financial compensation for the loss he sustained, the Commission again noted that it has no contractual relationship with the complainant. Given that the Commission did not engage in unlawful conduct, its non-contractual liability cannot subsist. In addition, the Commission duly paid the contractor for the work performed by the complainant until he left the project. The Commission therefore rejected the complainant's claim.

16. In his observations, the complainant maintained his complaint.

The Ombudsman's assessment

17. As both the complainant and the Commission acknowledged, the Ombudsman notes that there is no contractual relationship between the Commission and the complainant, as the service contract was signed between the Commission and the contractor. The complainant signed a separate contract with the contractor to perform the duties of team leader.

18. The Ombudsman's analysis will be limited to verifying whether the Commission acted reasonably when it asked the contractor to replace the complainant.

19. The Ombudsman notes that the basis for the Commission's request for the replacement of the complainant was Article 17(2) - 'Replacement of Personnel' of the General Conditions of the service contract[3] , which provides that:

"In the course of performance, and on the basis of a written and justified request, the Contracting Authority can ask for a replacement if it considers that a member of staff is inefficient or does not perform its duties under the contract."

20. The term 'member of staff' covers all personnel working on the project. Consequently, the Commission interpreted the relevant legal provisions correctly when it stated that the complainant fell within the category 'personnel'.

21. The complainant also argued that the Commission could have ordered his replacement only once it determined that the contractor was in breach of contract and communicated that conclusion. In this regard, the Ombudsman notes that the General Conditions impose no such obligation on the Commission or the contractor. As stated above, the General Conditions simply provide that the contracting authority (in this case, the Commission) can ask for a replacement if it considers that a member of staff is "inefficient or does not perform its duties under the contract."

22. In this case, by letter of 16 January 2012, the Commission asked the contractor to replace the complainant as team leader as it considered that the complainant was not performing his duties adequately. The Ombudsman finds that the Commission acted in accordance with the General Conditions which indeed provide for this possibility.

23. The Ombudsman further notes that the General Conditions also require that a request for replacement of a member of staff be made in writing and be justified.

24. As regards sufficient justifications, the Ombudsman first notes that during the initial meeting, held on 29 November 2011, the complainant agreed to perform the following duties during the inception period: (i) carry out the tasks as specified in the Terms of Reference; (ii) assist the Beneficiary in the urgent finalization of grant contracts and in preparing the urgent start-up programme estimate; and (iii) prepare an inception report covering the above activities. The Ombudsman also notes that the Terms of Reference (Point 4.2) specifically mention these activities[4].

25. Second, the Ombudsman notes that, in its letter of 16 January 2012, the Commission explained that (i) the inception report prepared by the complainant was unacceptable as it was not based on the Organisation and Methodology structure (Annex III to the service contract) on the basis of which the contractor was awarded the highest score in the technical evaluation; (ii) the inception report contained basic misunderstandings as regards the training of beneficiaries, the role of the Technical Assistance, Food, Livelihood Security - Project Task Force and Implementing Partners, and the monitoring requirements; (iii) the complainant failed to assist properly the Department of Women's Affairs and the Delegation in the finalisation of the grant contracts and in the preparation of the start-up programme estimate; and (iv) the complainant was not sufficiently proactive in his work.

26. The Ombudsman finds that the Commission provided sufficient justifications as the above statements are clear and concise. Moreover, they accurately reflect the duties of the complainant and the reasons why the Commission considered that those duties were not properly carried out. In addition, the Ombudsman points out that the complainant declined to submit observations on these statements with a view to challenging their appropriateness or factual accuracy, despite having been explicitly invited to do so.

27. In light of the above, the Ombudsman finds that the Commission was entitled to request the replacement of the complainant as team leader and that, in doing so, it correctly applied the relevant legal provisions. The Commission also insisted on the procedural safeguard of asking the contractor to give the complainant the opportunity to submit observations[5].

28. Finally, as regards the issue of whether the Commission properly evaluated the complainant's performance, the Ombudsman notes that the contractor, with whom the complainant actually had a contractual relationship, fully agreed with the Commission's statements about the complainant's performance.

29. In light of the above, the Ombudsman finds no maladministration by the Commission.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Ombudsman finds no instance of maladministration by the Commission.

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

 

Emily O'Reilly
Strasbourg, 24/02/2015

 

[1] The General Conditions for Service Contracts for External Actions Financed by the EU or by the EU Development Fund.

[2] The Commission signed the service contract with the contractor, and the contractor signed another service contract with the complainant.

[3] The General Conditions of the Contract are contained in Annex I to the contract.

[4] "The Team Leader will assist the imprest administrator (Programme Director) in drafting programme estimates as well as reports. The Team Leader will verify, before adoption by the Programme Director, programme estimates, reports, tenders, dossiers, contracts, as well as payment proposals from the programme account. "

[5] The relevant part of the Commission's letter of 16 January 2012 reads: "I request you to provide us with [your] and the Team Leader's observations and your proposed next steps at the latest by 20 January 2012."