overview of contracts ingrid mariën-dusak information day for coordinators 17 july 2003
TRANSCRIPT
Overview of contractsOverview of contracts
Ingrid Mariën-DusakIngrid Mariën-Dusak
Information Day for CoordinatorsInformation Day for Coordinators
17 July 200317 July 2003
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OverviewOverview
Legal framework and general principles
Contract structure
Conclusion of the contract
Evolution of the consortium
Reporting
Amendments
Collective responsibility
Controls and sanctions
Consortium agreement
Intellectual property rights
Special clauses
Specificities of instruments
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EC
TREATY
FRAMEWORK PROGRAMME
SPECIFIC PROGRAMMES
PARTICIPATION AND DISSEMINATION RULES
CONTRACTSOther relevant EC Regulations
FINANCIAL REGULATION
INTERNATIONAL AGREEMENTS
WORK PROGRAMMES &
Calls for proposals
GUIDELINES ON EVALUATION AND
SELECTION PROCEDURES
Legal FrameworkLegal Framework
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Reflect requirements of the Legal Framework
Simplification
No different categories of contractors
Reduction of the number of contracts
Greater flexibility
Evolution of the project
Composition and changes to consortium
Greater autonomy for participants = Collective
approach
General principlesGeneral principles
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Core 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)
Contract structureContract structure
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Annex IIAnnex II
Part A Implementation of the Project
Section 1 Implementation and deliverables
Section 2 Termination of the contract and responsibility
Part B Financial Provisions
Section 1 General financial provisions
Section 2 Controls, recoveries and sanctions
Part C Intellectual Property Rights
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Contract structure & instrumentsContract structure & instruments
Core contract Annex II Annex III
IP Yes
NoE Yes
STReP
CA Common Common None
SSA
SME Yes
I3 Yes
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Annex IV - Form A
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 B
Accession of new legal entities to the contract. To be
signed by the new contractor concerned and by the
co-ordinator
Annex VI - Form C
Financial statement per activity. Specific to each
Instrument and/or type of action. To be filled
periodically by each contractor
Contract structureContract structure
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Every 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 Community
Exceptional cases: subject to very restrictive rules
Third parties identified in Annex I
Subcontractors
ContractorsContractors
NeNe
ww
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A contractor among other contractors
No additional rights
BUT
Additional obligations
Administrative tasks: single entry point for
communication, payments, reporting etc.
Co-ordinatorCo-ordinator
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Conclusion of the contract Conclusion of the contract 1/21/2
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.
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Conclusion of the contract Conclusion of the contract 2/22/2
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.
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Evolution of the Consortium Evolution of the Consortium 1/21/2
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.
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Evolution of the Consortium Evolution of the Consortium 2/22/2
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.
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Entry into force and durationEntry into force and duration
Contract enters into force upon signature of Co-ordinator and Commission
Project begins on date established in the contract
Implementation and payment phases relating to the project must be completed by the final implementation date of the contract
Contract completed when the rights and obligations of all parties to the contract have been met
Some provisions continue to apply after the final implementation date
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Reporting Reporting 1/21/2
Submission of periodic reports and deliverables within 45 days of the end of the reporting period
periodic activity report
periodic management report (including justification of resources deployed, Form C “Financial Statement”, consolidated summary financial report)
report on distribution between contractors
supplementary reports required by Annex I
audit certificate when required
c
Amendments - tacit for approval of project activity reports and for consortium changes
Special conditions*
* under development
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Reporting Reporting 2/22/2
Submission of final reports within 45 days after the end of the project. Delay may be increased by 45 days at the request of the consortium
final activity report
final management report
supplementary reports
report on the distribution of the Community financial contribution between contractors made after the end of the project
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Submission and approval of reportsSubmission 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 prevails
Approval of any report does not imply exemption
from any audit or review
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AmendmentsAmendments
Requests for amendments shall be submitted by registered mail with acknowledgement of receipt
Requests for amendments are submitted by the Coordinator on behalf of the consortium
Commission undertakes to approve or reject any amendment request within 45 days of receipt
No tacit approval of amendment request, except for modification or evolution of the consortium
All amendments shall be in writing
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General conditions of the contractGeneral conditions of the contract
Performance obligations for consortium, contractors, co-ordinator, Commission
Force Majeure Suspension and prolongation
the Consortium can propose to suspend the project in case of execution experiences strong difficulties or is uneconomic, if force majeure or exceptional circumstances the project
the Commission may suspend the project when the consortium is not performing satisfactory, in order to re-negotiate and propose necessary amendments
Termination any contractor may request the termination of its participation/the
Consortium may request to terminate the participation of any contractor in 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, ...
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Collective Responsibility of ContractorsCollective Responsibility of Contractors
1. Technical Collective Responsibility - Article II.17
Each contractor obliged to take all necessary measures to attain the objectives of the project and to carry out the work incumbent on the defaulting contractor
2. Financial Collective Responsibility - Article II.18
Should 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 Commission
Amount to be recovered to be allocated between the remaining contractors in accordance with their pro rata share in the project
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Controls and AuditsControls and Audits
Controls
Periodic activity reports (including plan for dissemination and use)
Periodic financial reports
Supplementary reports if foreseen (in Annex I or III)
Final reports covering the whole project duration
Audits
Scientific, technological and financial audits
Annual monitoring by Commission with external experts (particularly for IP and NoE)
Ethical or other reviews
Contractors right to refuse particular expert
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SanctionsSanctions
Irregularity is grounds for exclusion from evaluation or selection procedure
Liquidated damages for overclaims
Administrative or financial sanctions foreseen in the Financial Regulation
Financial penalties for grave/repeated breach of contractual obligations
Without prejudice to any civil remedies or criminal proceedings
Recovery orders
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Characteristics:
Private Contract between the contractors
Provides for internal operation and management of the consortium
Commission does not review it or approve it
However, provisions must not conflict with provisions of EC Contract
May be modified/amended after entry into force
Non-binding guidelines published by the Commission
The Consortium Agreement The Consortium Agreement 1/31/3
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The Consortium Agreement The Consortium Agreement 2/32/3
Why: Mandatory unless excluded by the call for proposals Management of the consortium
distribution of funds paid to the consortium (via the co-ordinator)
no automatic pre-allocation of the funds among contractors: to be decided by the consortium
evolution of the work programme organisation 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 same
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The Consortium Agreement The Consortium Agreement 3/33/3
Issues:
Decision-making process and dispute settling
IPR
ensure that agreements necessary for the implementation of the project have been reached - exclusion of background/sideground
initiate common strategy on dissemination/use/ protection + search for industrial partners
Global Risk Management
establish 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 instruments
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Intellectual Property Rights (IPR) Intellectual Property Rights (IPR) 1/31/3
Developed on the basis of feedback from FP 5 features of the “new instruments”
contractors may leave/join during the project “larger” projects
Principles consistency with FP 5 (similar concepts) simplification
new same IPR rules for ± all instruments (fewer exceptions) new same IPR rules for all contractors
increased certainty, in particular regarding access rights(restricted to what is necessary)
increased emphasis on the management of knowledge and IP(especially new instruments)
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Intellectual Property Rights (IPR) Intellectual Property Rights (IPR) 2/32/3
General concepts:
definitions: no major changeS compared to FP 5
“knowledge”, “pre-existing know-how”, “use”, “dissemination”, …
ownership: no major changes compared to FP 5
resides with the contractor (including JRC) generating knowledge
transfer of ownership: prior notice to other participants + Commission (possible objection within 30 days)
public procurement (Commission owns results)
Protection
where there is commercial application and subject to legitimate interests, it is a requirement to protect
where there is no protection, Commission may protect
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Intellectual Property Rights (IPR) Intellectual Property Rights (IPR) 3/33/3
General concepts:
Publication
allowed if not detrimental to protection
prior notice to Commission + other contractors (possible objection within 30 days)
Use/dissemination
obligation to use and disseminate
Commission may disseminate itself if needed
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FP6 System of Access RightsFP6 System of Access Rights
Access rights topre-existing know-how
Access rights toknowledge
If a contractor needs them for carrying out its own work under the project
For carrying out the project
Royalty-free unless otherwise agreed
before signing the contract
Royalty-free
If a contractor needs them for using its own knowledgeFor use
(exploitation + further research)
Non-discriminatory conditions to be agreed
Royalty-free unless otherwise agreed
before signing the contract
Possibility for participants to agree on exclusion of specific pre-existing know-how before signature of the contract (or
before entry of a new participant)
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Participation by the JRC EEIG, JRU and SME Associations International organisations Complementary contracts Sole contractor clause for SSA that may become pluri-contractors
Sole contractor that cannot be pluri-contractors Mid-term review clauses Payment of the contractor’s pre-financing, subject to obtaining a
financial guarantee Exoneration of Financial collective responsibility Reimbursement of less than 100% for SSA Signature of a consortium agreement as prerequisite to beginning
of project Ineligibility of costs incurred in relation to an activity
* draft
Article 9 Special clauses *
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Increase of the EC financial contribution - only for SSA under article 9.2.a
Contractors with flat rate overheads of less than 20%
Contractors with no eligible costs (e.g. Third countries)
Ethical rules
Clinical research
Specific support actions involving Transnational Acces
Cases where other enterprises and/or end-users participate
Delayed accession of contractors established in a new Member State to contracts entering into force between the 01.01.2004 and the 31.01.2004 due to Article 32 of the Accession Treaties
Projects with only one reporting period
Article 9 Special clauses
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Annex III - Integrated projectsAnnex III - Integrated projects
Competitive calls
Publication requirements
Evaluation of offers
Accession of new contractors
Objections by the Commission within 6 weeks
Contract amendment
Updating the implementation plan
Annual review
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Annex III - Networks of excellenceAnnex III - Networks of excellence
Community financial contribution
Competitive calls
Updating the joint programme of activities
Annual review
Failure of annual review