Съобщение на комисията до европейския парламент, съвета и сметната палата

Article 54 of the Implementing Rules of the Financial Regulation requires authorising officers by delegation to record contracts concluded under negotiated procedures. Furthermore, the Commission is required to annex a report on negotiated procedures to the summary of the annual activity reports (AAR) referred to in Article 60.7 of the Financial Regulation.

A distinction has been made between the 43 Directorates-general, services, offices and executive agencies which normally do not provide external aid, and those three Directorates-general (AIDCO, ELARG and RELEX) which conclude procurement contracts in the area of external relations (different legal basis: Chapter 3 of Title IV of Part Two of the Financial Regulation) or award contracts on their own account, but outside of the territory of the European Union.

These three Directorates-general have special characteristics as regards data collection (decentralised services, …), the total number of contracts concluded, thresholds to be applied for the recording of negotiated procedures (€10 000), as well as the possibility to have recourse to negotiated procedures in the framework of the rapid reaction mechanism (extreme urgency). For these reasons, a separate approach has been used for procurement contracts of these three Directorates-general.

3. Overall results of negotiated procedures recorded

3.1. The 43 Directorates-general, services or offices, excluding the three "external relations" Directorates-general

On the basis of the data received, the following statistics were registered: 143 negotiated procedures with a total value of € 577 million were processed out of a total of 1196 procedures (negotiated, restricted or open) for contracts over 60,000€ with a total value of € 2370 million.

For the Commission, the average proportion of negotiated procedures in relation to all procedures amounts to 12.0% in number, which represents some 24.4% of all procedures in value.

An authorising service is considered to have concluded a "distinctly higher" proportion of negotiated procedures "than the average recorded for the Institution" if it exceeds the average proportion by 50%. Thus, the reference threshold for 2009 was fixed at 17.9% (12.8% in 2008).

Some 11 Directorates-general or services out of the 43 exceeded the reference threshold in 2009. Among those, it should be noted that 3 Directorates-general concluded only one to three negotiated procedures, but because of the low number of contracts awarded by each of them, the average was exceeded. In addition, 18 out of 43 Directorates-general have not used any negotiated procedure, including 5 DG that awarded no contracts at all. Furthermore, 11 DG have recorded a substantially lower percentage (less than 5%) of negotiated procedures in terms of value than the Commission average (24.4%).

The assessment of negotiated procedures compared with the previous year (2008) shows an increase in the order of 3.4 percentage points in number and 19.3 percentage points in terms of value. This follows a continuous decrease in 2007 and 2008.

On the basis of the data received, the following statistics were registered: 298 negotiated procedures for a total value of contracts €290 million were processed out of a total of 1096 procedures for contracts over 10 000€ with a total value of about € 1161 million.

For the three "external relations" Directorates-general, the average proportion of negotiated procedures in relation to all procedures amounts to 27.2% in number, which represents some 25.0% of all procedures in value terms. Only one Directorate-general exceeds the reference threshold of 40.8% (average + 50%).

If compared with previous years, these Directorates-general have registered a clear increase of 20.2 points in number of negotiated procedures in relation to all procedures.

Three categories of justifications have been presented by those Directorates-general who exceeded the thresholds:

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  Statistical deviations due to the low number of contracts awarded under all procedures.
  
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  Objective situations of the economic activity sector, where the number of operators (candidates or applicants) may be very limited or even in a monopoly situation (for reasons of intellectual property, specific expertise, ). Situations of technical captivity may also arise especially in the IT domain (exclusive rights connected to software or maintenance of servers hosting critical information systems, etc).
  
• 
  Additional services/works, where it was either technically or economically impossible to separate these from the main (initial) contract, or similar services/works as provided for in the terms of reference.
  

Several corrective measures have already been proposed or implemented by the Directorates-general concerned:

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  Regular update of standard model documents and guidance documents.
  
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  Training and improved inter-service communication. The Central Financial Service provided regular practical training sessions on procurement.
  
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  Improvement of the system of evaluation of needs of Directorates-general/services and an improved programming of procurement procedures. The Commission' horizontal services will continue their active communication and consultation policy with the other DGs along the following axes:
  

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  permanent exchange of information;
  
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  ad-hoc surveys prior to the initiation of procurement procedures for the evaluation of needs;
  
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  where necessary, attribution of separate quotas for framework contracts within the Commission’s overall ceiling to entities with specific needs or with a specific budgetary environment (e.g. JRC or some Offices).
  

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  Phase-out from situations of technical captivity. The "captivity mitigation study" has been delivered in 2009. Its conclusions should enable the application of a methodological framework for assessing technical captivity in specific cases.
  

In accordance with Article 87(5) of the Implementing Rules, the Commission is required to report each year to the budgetary authority, in an annex to the summary of the Annual Activity Reports, on the waivers of recovery involving 100.000 € or more.

Time limits for payments are laid down in the Implementing Rules of the Financial Regulation²⁹ (hereinafter IR), and exceptionally in sector-specific regulations. Under Article 106 IR, payments must be made within 45 calendar days from the date on which an admissible payment request is registered or 30 calendar days for payments relating to service or supply contracts, save where the contract provides otherwise. Commission standard contracts are in line with the time limits provided for in the IR. However, for payments which, pursuant to the contract, grant agreement or decision, depend on the approval of a report or a certificate (i.e. the interim and/or final payment), the time limit does not start until the report or certificate in question has been approved³⁰. Under Article 87 of the Regulation of the European Parliament and the Council laying down general provisions on the European Development Fund, the European Social Fund and the Cohesion Fund, a specific rule applies: payments have to be made within two months³¹.

Following the revised Implementing Rules, which entered into application on 1 May 2007, compliance with payment time limits was reported for the first time by the Services in the 2007 Annual Activity Reports³².

The table below shows the evolution of payments made after expiration of the statutory time limit (i.e. late payments) during the three last years, based on statistics extracted from the ABAC accounting system:

As regards interest paid for late payments (see statistics in the table below) the total amount paid by the Commission rose significantly in 2008, due to the fact that as from 01/01/2008 payment of interest for late payments became automatic and, in principle³⁴, no longer conditional upon the presentation of a request for payment. This trend continued in 2009, despite the reduction in late payments.

In its April 2009 Communication³⁵, the Commission announced its intention to reduce its payment times further beyond the statutory time limits, aiming to make:

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  first pre-financing payments within 20 days from the signature date of the contract, grant agreement or decision, compared with the statutory time limit of 45 days (or 30 days for service and supply contracts).
  
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  all other payments within 30 days, compared with the statutory time limit of 45 days.