Presentation on theme: "Overview of contracts Ingrid Mariën-Dusak"— Presentation transcript:
1Overview of contracts Ingrid Mariën-Dusak Information Day for Coordinators17 July 2003
2Overview Legal framework and general principles Contract structure Conclusion of the contractEvolution of the consortiumReportingAmendmentsCollective responsibilityControls and sanctionsConsortium agreementIntellectual property rightsSpecial clausesSpecificities of instruments
3Legal Framework EC TREATY CONTRACTS INTERNATIONAL AGREEMENTS PARTICIPATION AND DISSEMINATION RULESFRAMEWORK PROGRAMMECONTRACTSSPECIFIC PROGRAMMESGUIDELINES ONEVALUATION ANDSELECTIONPROCEDURESOther relevantEC Regulations FINANCIAL REGULATIONWORK PROGRAMMES & Calls for proposals
4General principles Reflect requirements of the Legal Framework SimplificationNo different categories of contractorsReduction of the number of contractsGreater flexibilityEvolution of the projectComposition and changes to consortiumGreater autonomy for participants = Collective approach
5Proposal submission and evaluation Contract structureProposal submission and evaluation05/04/2017Core contract (standard with specifics of project) (possibly including special clauses)Annex I (technical tasks - the “project”)Annex II General Conditions (applicable to every instrument)Annex III Instrument specific provisions (specific to instrument)Presentation IP - Heysel
6Annex II Part A Implementation of the Project Section 1 Implementation and deliverablesSection 2 Termination of the contract and responsibilityPart B Financial ProvisionsSection 1 General financial provisionsSection 2 Controls, recoveries and sanctionsPart C Intellectual Property Rights
7Contract structure & instruments Core contract Annex II Annex IIIIP YesNoE YesSTRePCA Common Common NoneSSASME YesI3 Yes
8Contract structure Annex IV - Form A Annex V - Form B Consent of contractors identified in the core-contract (article 1.2) to accede to the contract. To be signed by the contractor concerned and by the coordinator.Annex V - Form BAccession of new legal entities to the contract. To be signed by the new contractor concerned and by the co-ordinatorAnnex VI - Form CFinancial statement per activity. Specific to each Instrument and/or type of action. To be filled periodically by each contractor
9ContractorsNewEvery legal entity that contributes to the project (incl. Project Managers)General Rule: Participant = contractor Every legal entity contributing to a project must have a contractual link with the CommunityExceptional cases: subject to very restrictive rulesThird parties identified in Annex ISubcontractors
10Co-ordinator A contractor among other contractors No additional rights BUTAdditional obligationsAdministrative tasks: single entry point for communication, payments, reporting etc.
11Conclusion of the contract 1/2 The contract will be concluded between the Commission and all participants in an indirect action (the ‘Consortium’).It will enter into force upon signature by the Commission and the contractor acting as ‘Co-ordinator’ of the project.The other participants identified in the contract will accede to it in accordance with Article 2, assuming the rights and obligations of the contract with effect from the date on which it enters into force.
12Conclusion of the contract 2/2 Within a fixed time-limit after the entry into force of the contract, the Coordinator must send to the Commission the Accession Form A to be obtained from each of the participating contractors.Should any named participant fail or refuse to accede to the contract within the deadline, the Commission is no longer bound by its offer. It may terminate the contract.The Consortium may propose appropriate solutions to the Commission to ensure the implementation of of the project, including the accession of other alternative legal entities.
13Evolution of the Consortium 1/2 The Consortium may be enlarged to include other legal entities, which shall accede to the contract by means of Accession Form B.The Commission is deemed to have accepted this legal entity as a contractor to the Consortium if it does not object within six weeks of receipt of Form B (Tacit Approval).Any acceding participant shall assume the rights and obligations of the contractors as established by the contract with effect from the date of its accession to the contract.
14Evolution of the Consortium 2/2 Any contractor may request the termination of its participation in the contract.The consortium may request the participation of any contractor.Tacit approval of such termination after six weeks.Contractors leaving the Consortium shall be bound by the provisions of the contract regarding the terms and conditions applicable to the termination of their participation.
15Entry into force and duration Contract enters into force upon signature of Co-ordinator and CommissionProject begins on date established in the contractImplementation and payment phases relating to the project must be completed by the final implementation date of the contractContract completed when the rights and obligations of all parties to the contract have been metSome provisions continue to apply after the final implementation date
16Reporting 1/2Submission of periodic reports and deliverables within 45 days of the end of the reporting periodperiodic activity reportperiodic management report (including justification of resources deployed, Form C “Financial Statement”, consolidated summary financial report)report on distribution between contractorssupplementary reports required by Annex Iaudit certificate when requiredcAmendments - tacit for approval of project activity reports and for consortium changesSpecial conditions** under development
17Reporting 2/2Submission of final reports within 45 days after the end of the project. Delay may be increased by 45 days at the request of the consortiumfinal activity reportfinal management reportsupplementary reportsreport on the distribution of the Community financial contribution between contractors made after the end of the project
18Submission and approval of reports Electronic submission of reports and deliverables. In addition, submission of originals of these documents and of audit certificates by registered mail with acknowledgement of receipt.Reception date of submission by mail prevailsApproval of any report does not imply exemption from any audit or review
19AmendmentsRequests for amendments shall be submitted by registered mail with acknowledgement of receiptRequests for amendments are submitted by the Coordinator on behalf of the consortiumCommission undertakes to approve or reject any amendment request within 45 days of receiptNo tacit approval of amendment request, except for modification or evolution of the consortiumAll amendments shall be in writing
20General conditions of the contract Performance obligations for consortium, contractors, co-ordinator, CommissionForce MajeureSuspension and prolongationthe Consortium can propose to suspend the project in case of execution experiences strong difficulties or is uneconomic, if force majeure or exceptional circumstances the projectthe Commission may suspend the project when the consortium is not performing satisfactory, in order to re-negotiate and propose necessary amendmentsTerminationany contractor may request the termination of its participation/the Consortium may request to terminate the participation of any contractorin both cases “Where the Commission does not object within six weeks, it is deemed to have approved the request”by the Commission in case legal, financial, organisational or technical change, change of control, ...
21Collective Responsibility of Contractors 1. Technical Collective Responsibility - Article II.17Each contractor obliged to take all necessary measures to attain the objectives of the project and to carry out the work incumbent on the defaulting contractor2. Financial Collective Responsibility - Article II.18Should either the contract or participation of a contractor be terminated and any contractor does not honour the reimbursement of the amount due by that contractor, the Consortium is responsible to reimburse that amount to the CommissionAmount to be recovered to be allocated between the remaining contractors in accordance with their pro rata share in the project
22Controls and Audits Controls Audits Periodic activity reports (including plan for dissemination and use)Periodic financial reportsSupplementary reports if foreseen (in Annex I or III)Final reports covering the whole project durationAuditsScientific, technological and financial auditsAnnual monitoring by Commission with external experts (particularly for IP and NoE)Ethical or other reviewsContractors right to refuse particular expert
23SanctionsIrregularity is grounds for exclusion from evaluation or selection procedureLiquidated damages for overclaimsAdministrative or financial sanctions foreseen in the Financial RegulationFinancial penalties for grave/repeated breach of contractual obligationsWithout prejudice to any civil remedies or criminal proceedingsRecovery orders
24The Consortium Agreement 1/3 Characteristics:Private Contract between the contractorsProvides for internal operation and management of the consortiumCommission does not review it or approve itHowever, provisions must not conflict with provisions of EC ContractMay be modified/amended after entry into forceNon-binding guidelines published by the Commission
25Proposal submission and evaluation The Consortium Agreement 2/3Proposal submission and evaluation05/04/2017Why:Mandatory unless excluded by the call for proposalsManagement of the consortiumdistribution of funds paid to the consortium (via the co-ordinator)no automatic pre-allocation of the funds among contractors: to be decided by the consortiumevolution of the work programmeorganisation of work to be carried out (sub-projects)reports presented and submitted by the consortium (via the co-ordinator)evolution of the consortium’s composition (modification)IPR issues: should be agreed before signature of the contract (mandatory for specific pre-existing know how exclusion)Global Risk Management: collective responsibility - technical implementation of the action = collective responsibility of the contractors consortium to deal with breach of contract / non-performance and imposition of financial collective responsibility and any financial security necessary for samePresentation IP - Heysel
26Proposal submission and evaluation The Consortium Agreement 3/3Proposal submission and evaluation05/04/2017Issues:Decision-making process and dispute settlingIPRensure that agreements necessary for the implementation of the project have been reached - exclusion of background/sidegroundinitiate common strategy on dissemination/use/ protection + search for industrial partnersGlobal Risk Managementestablish internal auto-control & a checks and balances mechanism (periodic distribution of the funds, progress reporting, etc.)specific issues regarding competitive calls, costs less than EC funding, etc. for specific instrumentsPresentation IP - Heysel
27Intellectual Property Rights (IPR) 1/3 Developed on the basis offeedback from FP 5features of the “new instruments”contractors may leave/join during the project“larger” projectsPrinciplesconsistency with FP 5 (similar concepts)simplificationnew same IPR rules for ± all instruments (fewer exceptions)new same IPR rules for all contractorsincreased certainty, in particular regarding access rights (restricted to what is necessary)increased emphasis on the management of knowledge and IP (especially new instruments)
28Intellectual Property Rights (IPR) 2/3 General concepts:definitions: no major changeS compared to FP 5“knowledge”, “pre-existing know-how”, “use”, “dissemination”, …ownership: no major changes compared to FP 5resides with the contractor (including JRC) generating knowledgetransfer of ownership: prior notice to other participants + Commission (possible objection within 30 days)public procurement (Commission owns results)Protectionwhere there is commercial application and subject to legitimate interests, it is a requirement to protectwhere there is no protection, Commission may protect
29Intellectual Property Rights (IPR) 3/3 General concepts:Publicationallowed if not detrimental to protectionprior notice to Commission + other contractors (possible objection within 30 days)Use/disseminationobligation to use and disseminateCommission may disseminate itself if needed
30FP6 System of Access Rights Access rights topre-existing know-howknowledgeIf a contractor needs them for carrying out its own work under the projectFor carrying outthe projectRoyalty-freeunless otherwise agreed before signing the contractIf a contractor needs them for using its own knowledgeFor use(exploitation + further research)Non-discriminatory conditionsto be agreedunless otherwise agreedbefore signing the contractPossibility for participants toagree on exclusion of specificpre-existing know-how beforesignature of the contract (orbefore entry of a new participant)
31Article 9 Special clauses * Participation by the JRCEEIG, JRU and SME AssociationsInternational organisationsComplementary contractsSole contractor clause for SSA that may become pluri-contractorsSole contractor that cannot be pluri-contractorsMid-term review clausesPayment of the contractor’s pre-financing, subject to obtaining a financial guaranteeExoneration of Financial collective responsibilityReimbursement of less than 100% for SSASignature of a consortium agreement as prerequisite to beginning of projectIneligibility of costs incurred in relation to an activity* draft
32Article 9 Special clauses Increase of the EC financial contribution - only for SSA under article 9.2.aContractors with flat rate overheads of less than 20%Contractors with no eligible costs (e.g. Third countries)Ethical rulesClinical researchSpecific support actions involving Transnational AccesCases where other enterprises and/or end-users participateDelayed accession of contractors established in a new Member State to contracts entering into force between the and the due to Article 32 of the Accession TreatiesProjects with only one reporting period
33Annex III - Integrated projects Competitive callsPublication requirementsEvaluation of offersAccession of new contractorsObjections by the Commission within 6 weeksContract amendmentUpdating the implementation planAnnual review
34Annex III - Networks of excellence Community financial contributionCompetitive callsUpdating the joint programme of activitiesAnnual reviewFailure of annual review