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Ongoing issues with EuropeAid                                            December 2013

We wrote to EuropeAid to check on progress regarding some of TACU's main concerns. They assured us that all our “feedback” to them regarding the new PRAG has been taken into consideration. Of course, taking things “into consideration” does not necessarily mean agreeing with them, but at least they are being considered! Among the issues are the following:

You will remember that we submitted a detailed proposal several months ago, arguing that experts are at a huge disadvantage if they get into a dispute with their contractor, because if there is no amicable settlement the issue goes straight to court - in the contractor's jurisdiction, not the expert's. Hence we argued that all our contracts should include a mandatory statement allowing for a fairer, faster and cheaper arbitration procedure. EuropeAid have now told us that the new PRAG contains a clause setting out a dispute resolution procedure between experts and contractors. We hope that this will correspond with our proposals, but we have not yet seen the new PRAG.

They also intend to encourage greater use of Global Price Contracts. Because GPCs remove the need for SoE&As, we are generally in favour of seeing more of them. However, there are several potential disadvantages that have been highlighted in a number of LinkedIn discussions. We will have to see how things turn out in practice. EuropeAid seems to say that PRAG will be very clear about when GPCs can be used, which is welcome as there have been concerns expressed that different EUDs would interpret the rules differently. Hopefully this will not be the case. They refer to the problem of non-payment of fees to experts and say: “As for the payment of experts we recommend to state in the General Conditions that the Contractor's staff (this concept includes all staff including free-lance experts) must be provided with all financial and technical means to carry out the tasks described in the contract.” We are not sure what this means as PRAG already requires contractors to pay everybody in a timely fashion. Our problem has been the refusal of EUDs/CAs to get involved in disputes between contractors and experts over non-payment of fees. We have argued that when this happens, the contractor is in breach of his own contract with the CA, but EuropeAid has always maintained that such disputes are solely between the expert and the contractor. We do not see how the above statement changes anything, but we will wait to see.

Finally, they refer to the famous Article 13 of the General Conditions concerning the obligation of contractors fully to insure experts. EuropeAid says that the matter is being worked on by external lawyers, but that they have not completed their outputs. We had hoped that the external consultations would have been resolved by now, as they started months ago. The problem is that the language used in the General Conditions is such that experts can be considered as sub-contractors and are therefore fully liable for their own insurance. At least, this is what the contractors have argued, apparently with the law on their side. EuropeAid is totally committed to ensuring that contractors insure experts in line with Article 13, hence the legal consultations which, presumably, are intended to find a formula to resolve this matter in our favour.

Overall, we are pleased that progress towards improving the conditions for experts is being made. Clearly, however, there is still a long, long way to go and we believe that lobbying is going to be a central activity for TACU for many years to come!