TACU’s new season newsletter                                                                                                        August 2014

Dear Colleagues,

First, we want to thank all those of you who have already responded to our recent survey on the European Commission as a donor.  If you have not participated in this short survey (it takes about ten minutes to complete) it is not too late to do so.  Please go to https://www.surveymonkey.com/s/9WB8JRY

We will keep the survey open until September to ensure the highest response possible.

In this newsletter we also discuss the use of Statements of Exclusivity and Availability (SOE&A) in Framework Contracts (FWC) and the strange case of the “secret” terms of reference for contractors in FWCs! In addition, we review the current situation regarding our proposals over arbitration in the event of a dispute between an expert and his/her contractor and discuss our recent proposals concerning restructuring of membership fees and services.

EuropeAid is fiddling with SOE&A in FWCs...

A member wrote to us to report how a contractor had asked him to sign an SOE&A for an FWC assignment before he had been selected as the contractor’s candidate for the post (i.e. there were other candidates for the same post and, presumably, they had all been asked to sign an SOE&A).  The expert protested that this is against EuropeAid’s own rules, which is true for service contracts.  However, the contractor said that this was now a requirement by EuropeAid for FWCs and told him that this was stated in the Terms of Reference governing contracts between the European Commission and contractors in FWCs.

We looked up the general TOR for FWC contractors on the Commission’s website and were very surprised to see that they are not published – even though they always were for previous rounds of FWCs.  Henry wrote to the FWC people in EuropeAid and received the astonishing reply that this document is “confidential” to the Commission and the FWC contractors – so we are not allowed to know what rules apply to us, the experts, including the truth about the SOE&As.

(For those of you who follow EU affairs generally, you may be interested to know that this correspondence took place shortly after the European Parliamentary elections when, right across Europe, voters expressed their strong disapproval of the EU and all that is wrong with it in unprecedented numbers.  One would expect the Commission to have noticed and responded to this warning.  But not in this part of EuropeAid.  No, here the policy is to become even more secretive and non-transparent than before.)

Eventually, after making a formal request to release this information to us (citing Regulation (EC) No. 1049/2001 – the Commission’s sort of Freedom of Information Act) we were sent the Global Terms of Reference (FWC BENEF 2013 – EUROPEAID/132633/C/SER/MULTI).  The relevant section is as follows:

“By signing the statement of exclusivity and availability, the expert commits himself to

a. allow only one Framework Contractor to present his CV for a given assignment;

b. work exclusively for a given assignment during the days charged to the related Specific Contract (one working day may not be charged to more than one project/assignment)

c. remain available to start and perform the assignment as scheduled in the Specific ToR.

The template of the statement can only be used for the FWC procedure. The statement is required only for the experts proposed in the Offer; the statement is specific to the assignment and can hence not be a general overall commitment signed prior to the Request.”

We have emphasized the most important part to make it as clear as possible – never sign an SOE&A unless you have a written confirmation from the contractor that you are included in their tender.

The official SOE&A currently used by the Commission can be downloaded here.  Sometimes contractors change this template and add further conditions/restrictions.  This is not acceptable and you should only sign the official version.

Protest to EuropeAid

Arising from the above we wrote to the Director-General (DG) of EuropeAid, Mr. Fernando Frutuoso de Melo, expressing our disappointment and anger over the way TACU has been treated. We pointed out that we are recognized by one part of EuropeAid (service contracts) as a legitimate stakeholder to be involved in consultations, for instance over the new PRAG, but we are treated with disdain and are ignored by another part (FWC) when the regulations affecting our members and the expert community generally are being considered and introduced.

We did not receive a reply from the DG, but did get a letter from the Director of Resources in Headquarters and Delegations. (We do not know what this means.) In this letter this Department of EuropeAid told us, inter alia, that “Travel undertaken by the expert for mobilisation and demobilisation as well as for leave purposes shall not be considered as working days.  This was a decision made by the Department in order to bring BENEF 2013 “in line with the latest version of the PRAG provisions on service contracts”.

The letter also stated that this section in the Commission - contrary to the Legal Department of the Commission - did not consult with any external bodies when preparing the new FWC rules.  So much for transparency and responsiveness to stakeholders! Accordingly, after the summer holiday period we will take the matter up at a higher level within the Commission and with other appropriate EU institutions. It is an insult to all independent experts that the Commission totally ignores the only representative body we have. We are looking at every possibility to develop further action against this.

TACU is preparing for arbitration on arbitration...

Some of you will remember that nearly two years ago we submitted a detailed proposal covering the desirability of ensuring that arbitration arrangements were stipulated in contracts between experts and contractors.  This was to get rid of the grossly unfair practice that most (all?) contractors use of including in contracts a clause to the effect that, in the event of a dispute, the matter will be settled in a court in the contractor’s jurisdiction.

Since experts typically work for contractors from countries other than their own, language, custom, culture, legal system and financial cost make it virtually impossible for an expert to take a contractor to court.

Our arbitration proposals were designed to put in place a fairer, efficient, cheaper process – and especially one where contractors would not have “home country advantage”.

EuropeAid were sympathetic to our proposals but said they needed outside legal expertise to examine the issue.

We are still waiting for a response.  In the meantime, the new PRAG is in effect.  We had intended that our proposals would be included in PRAG and they were submitted a year or so before the new version came into effect.  There was plenty of time for legal examination, but apparently not enough time for EuropeAid.  They will receive a ‘last call’ before taking this to the European Ombudsman.

Subscriptions

We have given a lot of thought to the amount TACU charges as a membership fee.  The current fee of €180 a year was set when we started based on fees for membership of comparable organisations and also the feedback we received from experts who were interested in establishing a representative professional body.  However, we are aware that a lot of potential members appear to be put off from joining by the cost.  Accordingly, we have developed an affordable and attractive alternative and will shortly write to you separately on this important matter.

Best wishes to you all,

Henry Leerentveld and Stephen Dewar