Dear Mrs C.,

On 19 December 2001, you made a complaint to the European Ombudsman on behalf of ACTED concerning the Commission's rejection of ACTED's application AD 21367-084 "Support to food security through small-scale bakeries and small scale farmers in Tajikistan" further to the Call for proposals SCRE/111402/C/G "Food Security Programme NGO 2000".

On 23 January 2002, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 26 February 2002 and 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 relevant facts were as follows:

"ACTED", (hereafter "the complainant") is an aid agency of technical co-operation and development. In January 2001 the complainant submitted an application further to the Commission's Call for Proposals SCRE/111402/C/G "Food Security Programme NGO 2000" managed by the EuropeAid Co-operation Office. The complainant's project AD 21367-084 was called "Support to food security through small-scale bakeries and small scale farmers in Tajikistan".

On 2 August 2001, the complainant received the Commission's letter of 24 July 2001 notifying it of the ineligibility of the application because of "Incoherent budget. Breakdown of expenditures is indicated only for the contribution requested from the Commission". In its rejection letter, the Head of Unit stated that "We regret that we cannot enter into any discussion regarding the grounds for this decision, either by e-mail, letter, fax or telephone".

On 3 August 2001, the complainant wrote to the Commission asking its application to be reconsidered. The complainant is of the opinion that the Commission has not followed properly the administrative procedures of the call for proposals. In its letter of 3 August 2001 the complainant observed that the standard budget form published by the Commission on its Website did not indicate whether the budget should refer to the whole budget including all co-financing from other sources, or only to the budget requested from the Commission. There were no other columns or lines for identifying other financial contributions to the programme.

On 6 and 7 August 2001, as well as on 16 November 2001, the complainant wrote again to the Commission. In its letter of 7 August 2001, the complainant observed that according to the procedure, the Commission was in the phase of judging the "administrative compliance" of the project and not the eligibility. The complainant also observed that it had used the Commission's standard budget form. However, the Commission replied to none of the complainant's letters.

On 19 December 2001, the complainant made the present complaint to the Ombudsman making the following two allegations:

1. The Commission has not followed properly the administrative procedures of the Call for proposals SCRE/111402/C/G "Food Security Programme NGO 2000" what resulted in the rejection of the complainant's application AD 21367-084 "Support to food security through small-scale bakeries and small scale farmers in Tajikistan".

2. The Commission failed to reply to the complainant's letters of 3, 6 and 7 August 2001 and of 16 November 2001.

THE INQUIRY

The Commission's opinion

The Commission first recalled the facts of the complaint:

In January 2001, the complainant submitted a project for financing in the framework of the Call for Proposals SCRE/111402/C/G. At its meeting of 17 July 2001, the Selection Committee examined all proposals which had been evaluated by an external contractor, TRANSTEC, in order to assess them on the basis of the administrative compliance and eligibility grid. Those proposals that complied would then pass on to the next stage of the evaluation procedure, the technical evaluation of the project itself.

One of the criteria of prime importance in determining the eligibility of a proposal is a sound and balanced budget containing all of the elements requested in the texts of the Call for Proposals. The complainant's submission was found to be deficient in the area of its budget since the applicant had presented costs covering only the contribution sought from the Commission. The Guidelines of the Call for Proposals were clear, as was the annexed budget form, which indicated that 100 % of eligible costs should be presented in the budget.

It has been the practice that when there are errors in the draft budget, the application should be rejected since this requirement constitutes more than a simple administrative formality. The Selection Committee thus rejected ACTED's application, along with 9 other cases falling into the same category. The letters of rejection were then dispatched to the unsuccessful applicants on 24 July 2001.

The complainant reacted immediately by telephone and insisted that they wished to correct this error by resubmitting a new budget. After a detailed and courteous conversation, the complainant was told that they could, of course, send the new budget but that is was the Committee which would have to decide as to its admissibility.

The Committee met on 27 September 2001 and confirmed its view that budget errors were indeed a question of eligibility rather than administrative formality. This was explained to the complainant by telephone.

As regards the complaint, the Commission made the following observations:

The Commission stressed that the "Practical Guide to EC external aid contract procedures" was published in January 2001 after the launch of this Call for Proposals. It nevertheless undeniably foresees in point 6.3.8.3 that "This assessment must be carried out using the administrative compliance and eligibility grid (seen Annex E7) using the criteria set out in the Guidelines for Applicants. Under no circumstances may assessors or member of the Evaluation Committee change the administrative compliance and eligibility grid communicated to the applicants in the Guidelines for applicants. Administrative compliance: is the dossier complete ? In case some document is missing or some part of the application form is not completed, completion will be required from the applicant within 48 hours".

After having reviewed the file, the Commission services agree that, in reading carefully the above wording, it can indeed be credibly argued that the budget does form part of the "application form" and, therefore, can be considered as an administrative formality. Consequently, the applicant should benefit from the 48-hour period to remedy errors.

In the light of this, following the procedure, the Committee Chairman will recommend to the Committee members, at their next meeting foreseen for the end of February 2002, that they reverse their decision on this as well as on the other cases of a similar nature. In these other 9 cases, the applicant should also be invited to resubmit their budgets within the allocated period of 48 hours. ACTED will then be officially informed of the outcome of its application.

As regards the failure to reply, the Commission regretted that its services did not answer the complainant's communications received on 3, 6 and 7 August and 16 November 2001 in writing. Nevertheless, the Commission services have informed, through several telephone conversations, the complainant of the status of the case. It is the Commission's point of view that in dealing with this case, the services can not be criticised for lack of communication, even if this communication should have been more formalised.

As conclusion, the Commission stated that it is foreseen that the Committee, at its next meeting, will formally admit the complainant's application to the next stage of the selection procedure which consists of a technical evaluation, by two separate entities, in order to score the project according to the published evaluation sheets. If the 9 other similar cases satisfactorily rectify their budgets, they will follow the same procedures. This technical evaluation and the resulting scores will then be examined by the Selection Committee, which will compare the quality of the project to that of all other proposals evaluated under this Call for Proposals, in order to determine whether the project is of the required standard to warrant a Community grant.

The Commission services wished to assure all parties that this final evaluation will be done according to the normal practice in the most objective and factual way.

The complainant's observations

The complainant did not send observations.

THE DECISION

1 The alleged failure of the Commission to follow the administrative procedure

1.1 The complainant alleged that the Commission has not followed properly the administrative procedures of the Call for proposals SCRE/111402/C/G "Food Security Programme NGO 2000" what resulted in the rejection of the complainant's application AD 21367-084 "Support to food security through small-scale bakeries and small scale farmers in Tajikistan".

1.2 The Commission observed that in reading the Practical Guide, it could be argued that the budget does form part of the application form and could therefore be considered as an administrative formality. In the light of this the Commission stated that the Committee Chairman will recommend to the Committee members to reverse their decision on this and other cases. The Committee will formally admit the complainant's application to the next stage of the selection procedure which consists of the technical evaluation. The Commission also pointed out that the final evaluation will be done according to the normal practice in the most objective and factual way. The complainant did not submit observations on the Commission's opinion.

1.3 The Ombudsman notes that the Commission finally accepted that the budget of the application could, according to the Practical Guide, be considered as part of the administrative compliance. As a result of this the complainant's application was admitted to the next stage of the evaluation. It therefore appears that the Commission has taken adequate steps to settle the matter. No further inquiries are therefore justified.

2 The alleged failure to reply to the complainant's letters

2.1 The complainant alleged that the Commission failed to reply to its letters of 3, 6 and 7 August 2001 and of 16 November 2001. The Commission regretted that its services had not answered the complainant's communications. However, they had informed the complainant, through several telephone conversations, of the status of the case and the Commission therefore considered that its services can not be criticised for lack of communication.

2.2 The Ombudsman notes that the Commission's failure to reply to the complainant's letters is consistent with the fact that, in its short rejection letter of 24 July 2001, the Commission stated that "We regret that we cannot enter into any discussion regarding the grounds for this decision, either by e-mail, letter, fax or telephone".

2.3 With this respect, the Ombudsman would like to recall that principles of good administrative behaviour require the Community institutions and bodies to state the grounds for the decisions they take(1). The Commission's Code of Good Administrative Behaviour provides that "where it may not be possible, for example because of the large number of persons concerned by similar decisions, to communicate in detail the grounds of individual decisions, standard replies may be given. These standard replies should include the principal reasons justifying the decision taken. Furthermore, an interested party who expressly request a detailed justification shall be provided with it".

2.4 In the present case, it appears that the complainant was merely provided with a short standard reply. By its wording, the Commission's letter of 24 July 2001 explicitly precluded the complainant from the right to be provided with a detailed justification for the rejection decision. This constitutes an instance of maladministration and the Ombudsman makes the critical remark below.

3 Conclusion

On the basis of the Ombudsman's inquiries into part 2 of this complaint, it is necessary to make the following critical remark:

The Commission's Code of Good Administrative Behaviour provides that "where it may not be possible, for example because of the large number of persons concerned by similar decisions, to communicate in detail the grounds of individual decisions, standard replies may be given. These standard replies should include the principal reasons justifying the decision taken. Furthermore, an interested party who expressly request a detailed justification shall be provided with it".

In the present case, it appears that the complainant was merely provided with a short standard reply. By its wording, the Commission's letter of 24 July 2001 explicitly precluded the complainant from the right to be provided with a detailed justification for the rejection decision. This constitutes an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

Jacob SÖDERMAN

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(1) See the section "duty to justify decisions" in the Commission's Code of Good Administrative Behaviour, as well as Article 18 of the Ombudsman's Code of Good Administrative Behaviour. See Also Article 41 of the Charter of Fundamental Rights.