Deciziei în cazul 1983/2011/AN - Atribuirea unui contract în Algeria în urma unei licitații a UE
European Ombudsman
Deciziei în cazul 1983/2011/AN - Atribuirea unui contract în Algeria în urma unei licitații a UE
Decizie
Caz 1983/2011/AN - Deschis la 27/10/2011 - Decizie din 23/09/2014 - Instituţia vizat¤
Comisia Europeană ( Observaţie critică ) |
Cazul se referă la atribuirea, în 2011, a unui contract în Algeria în urma unei licitații a UE. Reclamantul, o societate privată, a considerat că produsele ofertantului câștigător nu erau originare din UE. Ancheta Ombudsmanului a arătat că a existat administrare defectuoasă în acest caz, deoarece originea din UE a produselor nu a fost demonstrată înainte de atribuirea contractului, iar delegația din Algeria a întârziat mult verificarea presupusei neeligibilități.
Totuși, Ombudsmanul a acceptat poziția Comisiei, potrivit căreia originea din UE a produselor a fost, în cele din urmă, dovedită. Ombudsmanul a formulat o propunere de soluție amiabilă, potrivit căreia Comisia ar fi trebuit să despăgubească reclamantul pentru costurile aferente participării la licitație. Comisia a respins propunerea. Prin urmare, Ombudsmanul a închis cazul cu o observație critică.
The background
1. The complainant participated in x xxxxxx organised by the EU Delegation in Algeria ('the Delegation') in 2011 and which was aimed at purchasing security equipment so as to provide support to the reform of the penitentiary system in that country.
2. The complainant had suspicions that another tenderer did not comply with the tender requirement that the equipment be manufactured in the EU or in an eligible country. The complainant believed that the other tenderer’s material originated from Malaysia. It raised these concerns with the Commission, which nevertheless awarded the contract to the other tenderer because its financial offer was more advantageous. The complainant appealed against this decision but the Delegation maintained it.
3. Not satisfied with the outcome, the complainant contacted the European Ombudsman.
4. The Ombudsman opened an inquiry into the complainant's allegation that the Delegation had committed irregularities in the tender award procedure, and its claim that the Delegation should have rejected the offer submitted by the tenderer chosen and, instead, award the contract to a tenderer that fulfilled the relevant criteria [1] .
5. The Ombudsman received the Commission's opinion on the above and its replies to further questions. On the basis of the information obtained from the Commission and the complainant's observations, the Ombudsman made a finding of maladministration and addressed a friendly solution proposal to the Commission [2] .
6. This decision is based on the arguments and positions presented to the Ombudsman prior to the friendly solution proposal, on the Commission's reply to the proposal and the complainant's observations on that reply.
Alleged irregularities in the award procedure of the call for tender and related claim
The Ombudsman's friendly solution proposal
7. When proposing the friendly solution, the Ombudsman took into account the arguments and opinions put forward by the parties, which may be summarised as follows.
8. The Commission explained that, in light of the complainant's allegations and the information submitted, it had questioned the winning tenderer on repeated occasions about the compliance of its goods with the rule of origin, and signed the contract only after the winning tenderer had provided the Delegation with a certificate of origin issued by the British Chamber of Commerce. After signing the contract, the winning tenderer sent to the Commission documents certifying that the company manufacturing the goods has a production plant in the UK, as well as further certificates issued by other Chambers of Commerce and by the carrier of the tendered goods from the UK to Algeria.
9. The Commission had no reason to doubt the authenticity of these certificates and therefore considered that the successful tenderer had at all times complied with the tender requirements. Moreover, the Commission contacted the Chambers of Commerce that had issued the certificates of origin, and their replies confirmed this position.
10. The complainant argued that Xxxxxxxx of Commerce deliver certificates of origin on the basis of a mere declaration made by an applicant. It stated that the Commission was aware that, in a different tender, the winning tenderer in question had acknowledged that its goods were in fact manufactured in Asia. In the present case, the complainant claimed that the tenderer simply transited its goods, which were manufactured in Asia, through its EU plant.
11. The Ombudsman noted that, before signing the contract with the Delegation, the winning tenderer had provided the Delegation with a certificate issued by the London Chamber of Commerce and Industry. Following the opening of the Ombudsman's inquiry, the Commission requested the above Chamber of Commerce to provide additional explanations regarding the certificate. The Chamber of Commerce clarified that the document was not a certificate of origin, but merely one containing the exporter's declarations, and that the role of the Chamber of Commerce was simply to confirm the authenticity of signatures on such a document.
12. The Ombudsman thus took the view that the Delegation a) had not properly verified the origin of the goods proposed by the winning tenderer at the time of awarding the contract, and b) took several months to carry out the required checks in order to verify the origin. The Ombudsman thus made a provisional finding of maladministration. However, given that another Chamber of Commerce that had issued a certificate concerning the same goods confirmed that its certificate was, indeed, a certificate of origin, the Ombudsman considered
that the winning tenderer had, albeit belatedly, proven the EU origin of its goods. Moreover, it was not certain that the complainant's bid would have been chosen if the winning tenderer had been disqualified. Therefore, the Ombudsman did not uphold the complainant's claim that the Commission should reject the winning tenderer's offer.
13. Instead, noting that the complainant had incurred some costs relating to the preparation and submission of the tender, and on the basis of the finding of maladministration above, the Ombudsman made the following friendly solution proposal to the Commission:
"Taking into account the Ombudsman's findings, the Commission could analyse all relevant evidence submitted by the complainant in relation to the charges and expenses it incurred as a result of its participation in the tender, with an eye to compensating them."
14. The Commission rejected the Ombudsman's proposal and reiterated that it had acted lawfully and in accordance with the applicable rules, which do not provide for an obligation to verify the origin of the goods at the time of awarding the contract, but only later.
15. The complainant stated, in its observations, that the information it had submitted showed that the goods, in fact, originated from Asia. In conclusion, the complainant stated that it did " not expect anything from the ongoing procedure, given that all its irrefutable evidence of fraud had been simply dismissed ."
The Ombudsman's assessment after the proposal for a friendly solution
16. The Ombudsman regrets that the inquiry into the present case and, in particular, the friendly solution proposal addressed to the Commission, have not led to a satisfactory outcome for the complainant.
17. The Commission has maintained its formalistic interpretation of the rules concerning the verification of the origin of the goods in the context of EU external aid projects. The Ombudsman notes that it is one thing for the Commission not to be obliged to verify the said origin at the time of awarding a contract, but quite another thing that it need not do so when there is reasonable suspicion that the goods do not fulfil the basic eligibility rules. Nothing prevented the Commission from taking more meaningful steps to verify the origin of the goods and reach a conclusion on the complainant’s reasonable suspicions at the time the contract was awarded. The Ombudsman therefore confirms the finding of maladministration made in that respect in the friendly solution proposal. However, given that the complainant stated in its observations that it no longer expected anything from the present inquiry, the Ombudsman will not pursue the matter but will close the case with a critical remark.
18. The Ombudsman notes that the proposal for a friendly solution, to which the complainant agreed beforehand, constituted an opportunity for the Commission to make good its maladministration as regards the complainant . In the spirit of the friendly
solution, the Ombudsman thus accepted the Commission's position that it had obtained acceptable evidence of the origin of the goods from two different Chambers of Commerce (Essonne and Paris), which confirmed the EU origin of the goods.
19. This, however, does not mean that the issue of the probative value of the certificates of origin, and the Commission’s obligation to ensure that the proof of origin submitted to it is indeed relevant and trustworthy, is resolved either in this particular case or more generally. This specific issue was raised in a subsequent complaint to the Ombudsman, 1091/2012/(AN)(RT)AN, in which the complainant challenged precisely the usefulness of the certificate of origin as evidence in demonstrating compliance with the eligibility rules. That general issue is, therefore, dealt with in detail in the Ombudsman's decision on complaint 1091/2012/(AN)(RT)AN, which is issued on the same day as the present decision [3] .
Conclusions
On the basis of the inquiry into this complaint, the Ombudsman closes it with the following critical remark:
Critical remark
The Commission: a) committed a manifest error of assessment in the award procedure by considering that the successful tenderer had submitted adequate proof establishing the compliance of its goods with the rule of origin at a time when this had not been established; and b) failed to act in a timely manner and to carry out the required checks as regards the authenticity of the information contained in the certificates submitted by the successful tenderer. These failures constituted maladministration.
The complainant and the Commission will be informed of this decision.
Xxxxx X'Xxxxxx
Done in Strasbourg on 23 September 2014
[1] Other allegations and claims raised by the complainant were not included in the inquiry.
[2] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's friendly solution proposal/draft recommendation available at: xxx.xxxxxxxxx.xxxxxx.xx.