Comments on the Practical Guide to PHARE, ISPA and SAPARD

GENERAL
Practical Guide to PHARE, ISPA and SAPARD (referred below as PRAG) entered
into force at a time when the new implementing arrangements for PHARE and ISPA
assistance were in place. According to these arrangements two types of institutions
are involved in the implementation of the projects:
- Institutions responsible for tendering and contracting (Implementing Agencies);
- Institutions responsible for the technical aspects of the project (Implementing
Authorities).
There is no clear distinction between these two actors in PRAG, which could lead to
confusion in the implementation of the projects.
Project Manager: The Manual for Instructions places the Project Manager within the
Contracting Authority (the Implementing Agency in most of the PHARE and ISPA
projects). Most of the tasks the Project Manager is responsible for are related to
technical aspects of the contracts, which normally should be placed under the
responsibilities of the Implementing Authority. Therefore, there is need for a clear
distinction between the tasks of the Implementing Agency and those of the
Implementing Authority. Also, it is not clear the relation between the Project Manager
and the Programme Authorizing Officer (PAO).
There is no mention of the Service procurement agents and Supply procurement
agent contracts. Since 1997, according with the new guidelines for PHARE
programme, there are more complex and big size contracts that include Special
Funds to be managed by the Contractor for the procurement of services or supply
that are identified and defined during the implementation of the contract. We believe
it is important to have procedures for the contracts that include procurement of large
amounts of services, supplies or works under the incidental expenditure budget line,
equivalent of the former Special Fund, as per the DIS Manual.
There is no reference to the twinning procedure. Even if it is a separate manual, the
Twinning is financed under PHARE programmes.
The chapter for works contracts is almost 100% copy of the supply contracts. The
works are very different from supply and it does not mean just equipment but more
complex and a variety of works (see FIDIC red book, yellow book, etc.). As the EC
Delegation has already informed, the use of FIDIC Contract Conditions is now
allowed and the choice is with the Contracting Authority. It is important that also the
PRAG makes reference to the possibility of using the FIDIC Conditions of Contract.
General remarks: There are not any provisions regarding the deadline within which
the EC Delegation should answer to any document submitted for approval. (In the
old DIS there were such provisions.)
Some definitions stated in Glossary of Terms or at the beginning of each chapter are
unclear or in contradiction with the same definition within the PRAG content. There
are also some inconsistencies between the PRAG content and its Annexes or
between different chapters.
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SPECIFIC
2.3.1 Rules on nationality and origin
In the first box it is stated that if a firm has only registered office in an eligible
country or state then it must be able to demonstrate effective and continuous links
with that countrys economy. How can we verify this? Which documents shall we
ask to be provided?
SERVICE CONTRACTS
3.3.1.2. "Publication of Procurement Notices"
The first paragraph of this article specifies that all service contracts of EUR 200,000
or more must be subject of a procurement notice published in the Official Journal of
the European Communities, on the Internet and "in any other appropriate media".
The definition of "appropriate media" should be included and a clear statement
whether or not it is compulsory for the procurement notices for service contracts of
EUR 200,000 or more to be published ALSO in other media, besides the Official
Journal and on the internet.
3.3.2. Establishing shortlists
In case of less than 4 eligible candidates meeting the selection criteria, the
Contracting Authority may consult a database of natural and legal persons who
have previously registered their interest in similar projects with the European
Commission.
The reference to the databases with potential candidates is not very clear.
Whose responsibility is the administration of such database and where it can be
consulted? How can practically be implemented this provision? Who have such a
databases, how can they be invited to participate in tender, are they request to
submit the offer? If not, how can the report (especially the standard template) be
filled in? This provision requires more details.
3.3.9.1 Composition
We noticed that there are no longer independent evaluators nominated by the
European Commission. From our experience the presence of such independent
evaluator is very useful for difficult or sensitive tenders. It is considered that this
possibility should remain open (not as a rule but case by case).
3.3.10.3 Evaluation of technical proposals
Regarding the box on page 42 about the Rule of origin: in case of service contracts
the provision for equipment is under incidental expenditure and it is purchased by the
contractor following the PHARE rules during the implementation of the contract
(according to General Condition for service contracts). In this case the Evaluation
Committee cannot verify that the proposed supplies satisfy the Rule of Origin,
unless this check refers only to the statement of the Tenderer concerning the origin
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of the supplies to be procured during the implementation of the project. A clear

indication concerning the checks to be made by the Evaluation Committee related to
the origin of supplies should be included.
3.3.12.3 Publicising the Award of the Contract
Firstly, it is a contradiction between the first bullet point of the first paragraph "This
letter must also state any shortcomings in the addressees tender, the detailed score
achieved by that tender and the aggregate score achieved by the successful
tenderer" and the last paragraph of 3.3.10.5, which states that The Evaluation
Report, in particular, is for official use only and may be divulged neither to Tenderers
nor to any party outside the authorised departments of the Contracting Authority, the
European Commission and the supervisory authorities. Should we understand
that the last paragraph of 3.3.10.5 refers to the Evaluation Report as a whole and
therefore transmitting detailed information to the unsuccessful Tenderers (part of the
Evaluation Report) is not an infringement of this provision?
From our experience, we noticed that more often we have been asked by the
companies to tell them in more detail why their offer was weak in order to improve
their preparation for future tenders. We believe that sending them such narrative
explanations about the weak points, instead of scores, is indeed more constructive
and at the same time transparent.
3.5. Modifying service contracts
There are minor changes that are possible to be requested such as: replacement of
short-term expert, re-allocation between lines under incidental expenditure. The
lifetime of a contract is now longer then in the past (18-30 months) and a lot of things
could occur. To prepare an addendum for such issues is too bureaucratic and time
consuming. For the above-mentioned reasons, more simple procedures should be
provided in the PRAG.
Annex B4 Long List
This list has to be signed first by the members of the Evaluation Committee (who
make the evaluation process) and then by the chairperson.
Annex B8 - Instructions to Tenderers
Article 6 "Period during which tenders are binding"
The article allows the Contracting Authority to ask the Tenderers, in exceptional
cases, to extend the validity of their tenders for a specific number of days (maximum
40). We believe that is important for the Contracting Authority to know what is the
procedure to be followed and what are the consequences in case a Tenderer does
not accept to extend its tender validity period.
Article 12.1.2 "Interviews"
According to the provisions of this article, there should be at least 10 days between
the date of confirmation or notification and the date of the interview. Since all the
Tenderers are aware of the provisional date for interviews at least 50 days before the
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deadline for submission of tenders (from the date of receipt of the Tender Dossier),
there is no justification for such an early confirmation or notification. We believe that
a minimum of 4 days would be enough for the confirmation / notification of the
invitation to interview.
Annex B8, item 7.2, Special Conditions
We believe that the different options for the payment schedule given in the format of
Special Conditions do not take into consideration a practical aspect: the percentage
of the advance to be deducted from each of the six-monthly instalments. A clear
indication of the way the advance is deducted from each request for payment should
be included or the Contracting Authority should be allowed to specify its own
payment schedule.
SUPPLY CONTRACTS
4.3.1.2. "Publication of Procurement Notices"
It is not clear if the local publication of the procurement notice for supply contracts of
EUR 150,000 or more is compulsory. PRAG should clearly state whether or not the
procurement notices for the above-mentioned supply contracts have to be published
locally.
4.3.2. Drafting and contents of the tender dossier
Tender Guarantee: Is it necessary to ask for the tender guarantee (1-2%) for small
amounts (e.g. a tender for 30,000 50,000)? There are too many formalities for 300500 Euro plus the cost (on bidders side) for issuing the guarantee.
4.3.9.4. Evaluation of technical proposal
Part 2: Technical conformity of tender proposal
If the grid is a YES/NO format, what is the reason for using individual Evaluation
Grids (you can not make an average for YES/NO!)?
It is not very clear how the decision for technically admissible or not is taken: how
many NOs could be accepted for technically admissible (it is very rare the case of
YES for all the technical requirements and, moreover, not all of them are vital).
4.3.9.6.3. Particularly complex supplies
It is not clear how the combination of quality and price may be used as the basis for
awarding the contract. Are there any guidelines for using such combinations?
Annex C4 - Instructions to Tenderers - Article 8 "Period of validity"
The article allows the Contracting Authority to ask the Tenderers, in exceptional
cases, to extend the validity of their tenders for a specific number of days (maximum
40). We believe that is important for the Contracting Authority to know what is the

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procedure to be followed and what are the consequences in case a Tenderer does
not accept to extend its tender validity period.
WORKS CONTRACTS
5.3.2. Drafting and content of the Tender Dossier
Due to the different types of works the Technical Specification cannot describe in
full the requirements of the project. For instance in case of Turnkey projects the
Contractor will execute the design and will propose the type of equipment, therefore
the use of technical specification (which indicates the exact nature and performance
characteristics of the works) is inappropriate.
As regard the YES/NO grid, this could be used for checking the compliance with
eligibility criteria, financial capability, experience in similar projects etc. However, for
works projects, there are other issues that should be assessed such as: proposed
personnel, work program, methodology, quality assurance system, etc. All these
cannot be done with YES/NO and the use of weighted marking (as per the old DIS)
is more suitable for works and it has been proved it is functioning very well.
For the contract documents, the FIDIC books are quite comprehensive and suitable
for all types of works, and it has been verified in practice all over the world and over
many years. As mentioned above, the use of FIDIC for works contracts should be
allowed through the PRAG.
5.3.9.4. Evaluation
In relation with the previous comment the evaluation should be in two parts:
conformity compliance (YES/NO) and technical evaluation (weighted marking). The
conformity compliance could be in two steps: the first one administrative compliance
(with the flexibility to ask minor lacking to be clarified and sent in maximum 48
hours), the result being admissible and non-admissible, and the second part being
qualification criteria compliance, with the same result.
5.3.9.5. Evaluation of financial proposal
Proposal: To keep the Technical and Financial offers in separate envelopes, the
financial offer being opened only after the technical evaluation is completed and the
weakest rejected. The final decision to be taken making the calculation as for service
contracts 80% and 20 %. The cheapest offer may not be the economically most
advantageous one, which is the basic principle of the PHARE programs. The works
contracts are not like supply contracts and there are a lot of issues to be analysed
and assessed, not just a yes or no.
5.7. Modifying works contracts
As the works contracts are different from supply contracts, the provision all contract
modifications must to be formalised through an addendum is again not suitable for

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the works contracts. Procedures envisaged by FIDIC should be used for

modifications to works contracts.
It is an undeniable fact that the day-to day implementation of all the execution needs
rather large number of variation of quantities foreseen in the contract. This situation
comes from different independent factors such as: the reality on the ground, the fact
that between the initial design and the on-site reality and day-to-day findings is
always a gap. As the design is given to the Contractor, he has no responsibility on its
accuracy and as a result the Employer is in the position to make some changes of
the quantities required. These kind of minor or major changes have to be decided on
the spot and are generally authorised by the Supervising engineer.
An addendum procedure for each and every variation of this kind will cause huge
delays and will finally jeopardise the execution of the whole work.
Therefore it is recommended a contingency line of 10-15% to be included in the
Contract Price and to allow changes through variation orders approved by the
Contracting Authority.
SERVICE, SUPPLY AND WORKS CONTRACTS
Award procedure threshold
When deciding which award procedure to be applied, the thresholds established by
the PRAG are in relation with the budget of the contract (all service / supply /
works contracts of <amount> or more). But the contract is often concluded for a
different value than the budget available. There is a difference between CONTRACT
and PROJECT, when referring to BUDGET. Maybe it should be better to refer to the
budget of the project when establishing the thresholds for various award procedures
(all service / supply / works PROJECTS of <amount> or more).
- When launching a procurement procedure - there is a PROJECT.
- Only after the tendering procedure ends, and the award decisions has
been taken - a CONTRACT is signed.
Instructions for fillingin the Forms (second paragraph of Instructions to
Tenderers)
These instructions are useful also for the Tenderers when preparing their offers (e.g.
Service / Supply Tender Submission Forms, Tenderers Declaration, etc.). Therefore,
they should not be deleted, as instructed, but inserted in another format (e.g. as an
overall instruction, addressing both the Contracting Authority and the Tenderer).
Single Tender
For the contracts less than 5000 Euro it is not clear the contracting procedure. If the
procedure follows the same rule as for simplified procedure except the list of firms
within the Contract Dossier that should be replace by a single offer - this must be
clearly stated in the PRAG.

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GRANT CONTRACT
6.1.1 Definitions
The non-profit character of the grant: The Evaluation Grid provided in Practical
Guide was special designed for non-profit organisations. Special templates and
especially adapted Evaluation Grid to assess proposals, appropriate for profitmaking applicants/projects (i.e. SMEs in case of support under social and economic
cohesion programmes) should be designed. Relevant information for this specific
type of projects should be included in the Application Form.
The non-commercial nature of the grant: Many times the applicants with required
experience are service providers/profit-making organisations that will be forced to put
up disguised co-financing (i.e. co-financing by the final beneficiaries - the target
group), exceeding the amount required to match costs, in order to make a profit
for the company. The strict application of the non-profit principle would artificially
make the scheme less attractive and/or would waive out the experienced providers.
6.1.2 Overview
Since there are contradictions between PRAG and the Vade-mecum on Grant
Management adopted by the EC in July 1998 (COM(98)PV1395) and applicable
since 1st of January, 1999, an order of precedence should be provided, as long as
the later is also applicable.
6.3.1 "Publicity" of the International Call for Proposals
It is not clear if the local publication of the Call for Proposals is compulsory. PRAG
should clearly state whether or not the Calls for Proposals have to be published
locally.
6.3.2 Drafting and contents of the Guidelines for Applicants and 6.4 Local Call
for Proposals
Language of the Guidelines for Applicants: for the local call for proposals the
Guidelines for Applicants should be prepared and approved by the EC Delegation in
the local (national) language the language of the public dissemination.
6.3.7 Evaluation Committee
The structure of the Evaluation Committee needs further clarifications:
The number of voting members should be compulsory odd, like in other
chapters?
Which is the minimum number of voting members? 3?
What minimum compulsory qualifications the members of the Evaluation
Committee should fulfill? Proposal: to apply for all the members the same
qualification criteria like for assessors.
The role, attributions and responsibilities of the observers should be defined, as
well as the minimal qualifications.
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6.3.7.3 Impartiality and Confidentiality

The distribution of the copies of the proposals to the assessors working outside the
building where the evaluation takes place could be a highly risky and discriminatory
practice.
6.3.7.4 Responsibilities of the Evaluation Committee members
If a proposal infringes the formal requirements, the Evaluation Committee may use
its discretion to decide whether or not it should still be considered during the rest of
the evaluation process. Whatever the Evaluation Committee decides, this must be
fully recorded and justified in the Evaluation Report. This empowerment can lead to
heterogeneous approaches of the evaluation process by different (possibly regional)
Evaluation Committees.
6.3.8.3 Assessment of administrative compliance and eligibility
Administrative compliance completion of the Tender Dossier: The acceptable
completions (missing documents and/or parts of the application) should be defined;
the method of calculating the 48-hours grace period should be defined.
The letter of non-compliance and/or ineligibility: it should be defined the timing of
communications (during the evaluation process/after the approval of the Evaluation
Report).
6.3.8.5 Conclusion of the Evaluation Committee
It is not clear how the Committee will draw up the recommendation. Shall we
understand that after the list of proposals ranked by score is prepared we stop when
the total allocated amount for the program is reached?
Signature of the Evaluation Report: it is not clear if the observers should sign the
Evaluation Report or the minutes of the meetings they participated.
6.3.9.2 Contract preparation
The Contract should be prepared also in the national language of the beneficiary
country, and the EC Delegation should approve the standard contract formats in the
national language also - the national legislation recognises only the contracts signed
in the national language.
The practice of not sending the supporting documents to the CA is extremely risky, in
the conditions of limited experience of grant beneficiaries with PHARE procedures
and rules.
Sending of the third copy of the Contract to the EC: in the case of a large number of
grants (like for ESC PHARE), this requirement raises major archive space
constraints.

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6.5 Modifying Grant Contract

Approval of addenda by the EC Delegation: in the case of a large number of grants
(like for ESC PHARE), this requirement can lead to major delays in the approval of
the addenda and threaten the project implementation; under the precedent grant
contracts the addenda was approved only by the CA.
6.5.2 Preparing an addendum
Modification of the Payment schedule implies inclusion of a payment schedule in the
contract as annex absent annex /template.
Annexes
Guidelines for Applicants
Objectives of the programme/1.2: this chapter should include supplementary
information linked to relevance heading of the Evaluation Grid, especially for regional
development programmes, when should be included region-specific information.
Partnership and Eligibility of Partners/2.1.2 It is possible that the eligibility criteria
for the partners are different from the criteria imposed to the lead applicant.
Eligibility of projects/2.1.3 Duration: it could be useful to include also the specific
time limits for the implementation of the projects, imposed by the disbursement
deadline(s).
Eligibility of costs/2.1.4 Checking process preceding the contracting this
requirement should be reflected in the Contract preparation chapter (6.3.9).
Further information/2.2.4 Information from chapter 6.3.4 (and especially deadlines)
should be included here and communicated to the potential applicants.
Evaluation and selection of applications/2.3 Information about allowed/not allowed
communication during the evaluation process should be provided here to the
potential applicants.
Application Form / Logical Framework
A list of recommended indicators, appropriate for the specific programme/type of
projects should be provided in the Guidelines.
General Conditions
General Conditions, art 9 (2) 10 % from the heading to be taken, to be added or both
The audit line for the all the contracts awarded should be tendered before the signing
of the grant contracts for all the grant contracts. The same company to make the
audit for the all grant contracts.
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It is not stipulated when the audit report will be submitted. It will be submitted with
the final report before the final payment?
What is the difference between the applicant and the partners in terms of payment?
When a project is financed from different sources is it necessary to for the proof that
the other funds than PHARE are available to be attached?
Is there a condition that the application is stamped by the applicant?
If a property is not in the ownership of the applicant (public institution) but it is in the
ownership of an NGO that is partner the property should be clarified before contract
signature?
If the beneficiary has approved two EU grants can it draw down the administrative
costs from each of the budget?
General Conditions, Art. 14 (3), Para 2: Indirect costs shall be eligible provided that
they do not include costs assigned to another heading of the Contract Budget
Could be used for the budgetary line already included but not funded?
Indirect costs should be used through inclusion of a new budgetary line in the
Breakdown of Prices?
Example of Indirect Costs would be useful.
General Conditions, Art. 15 (4): Advance of EUR 1 million or more must be fully
secured by a financial guarantee
Suggestion: to ask financial guarantee for an advance of EUR 100,000 or more.
Other remarks
Use of standard documents (referring to Basic rules for grants (6.1.5), Drafting and
contents of the Guidelines for Applicants (6.3.2), Eligibility and Evaluation Criteria
(6.3.3), Annex E3 & E7 & E10):
- There is a contradiction between the principle of using standard
documents/templates provided in the PRAG and the requirement to prepare
appropriate eligibility and selection criteria, sound for each programme/type of
project.
- For ESC/regional development programmes, where the evaluation criteria should
be adapted to different regional priorities and/or objectives (and not only to the
national-wide aspects), the annexes E3 and E10 should be flexible enough to
allow customisation to the regional aspects.
- For SME support programmes (profit-oriented projects), the Evaluation Grid is
strongly inappropriate for assessing the viability of the supported business and
the economical impact of the investment; the Application Form is inappropriate for
the SME projects, because does not contain key information - like company
profile and size, net profit/loss account, turnover, shareholders structure, market
information (clients, distribution, competition, market position, market strategies),
existing and future (project-related) production flows, technology, cash flows
and several of the headings of the Application Form are irrelevant for an

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investment project (like needs and constraints in the target countries, target
groups and their needs, partnership, multiplier effect);
Recommendation:
- The grid should be focused rather on figures than general narrative
approaches;
- The weight of different sections in the evaluation grid should be
reconsidered.
The inflexibility of standard Evaluation Grid imposes a creative interpretation of
the standard criteria by the Evaluation Committee(s), which sometimes depart
significantly from the original meaning and/or varies between the different
regional Evaluation Committees; if this interpretation cannot be integrated in the
Guidelines for Applicants, the principle of publicity of the evaluation criteria
cannot be fully respected;
Annex E7 should be flexible in order to be modified according to the
administrative compliance and eligibility criteria specific for the programme/type
of projects.

In Annex E3 Guidelines for applicants its shown one page template for Evaluation
Grid. In Annex E10 presents a 6 pages template for the same Grid, which must be
used by Evaluation Committee in evaluation process. In Annex E12 its shown the
Evaluation Grid, which must be attached to the decline letter. All three templates
comprise the same information about the applicants. During the entire process in fact
the Contracting Authority must use 3 templates for the same information.
OTHER COMMENTS RELATED TO SERVICES
General comments
In defining the service contract types, is made a distinction between Technical
Assistance contract and Study contract. Later in the PRAG content there is stated
that there are two type of service contract: fee based contract and global price
contract. It must be a correlation between the above-mentioned types of contracts
(e.g. TA contract generally must be a fee based contract while the Study contract is a
global price contract).
A. Framework Contract (FWC)
The explanations regarding the Budget Breakdown are not very well defined.
Moreover, there must be a provision stated that regardless the type of the contract
the documents justifying the expenses must be attached at least for the final
payment. In this way, the Financial Department within the Contracting Authority can
easily check the eligibility of the expenditure. Even in the General Condition is stated
at art. 25.4 that the Project Manager may make copies of any records and
accounting documents, it is better to clearly write this provision in the PRAG content.
Also, under FWC type, not even an audit certificate is required to be submitted
together with the request of final payment.
Annex A1- Glossary of Terms
The definition of the FWC is not very clear: what mean undetermined volume of
services? To be provided under the FWC?
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Obligation of signing the statement of availability (4.1.1 from FWC Manual)

The statement of availability template is foreseen in Annex B8-d belonging to
restricted tender procedure. Normally, the standard template should be either within
FWC procedure or to refer it as should be clearly foreseen in FWC.
Documents that should be send within the offer (4.2.5 from FWC Manual)
In the procedure is specified that there will be send only the offer accompanied by
CVs. It is nothing mentioned about the statement of availability that should be signed
by the experts.
Letter of Contract (4.5 from FWC Manual)
The Contract is constitute by the Letter of Contract, the signed original offer, the
initialised Terms of Reference, but there is nothing specified about General
Conditions that should be initialised by the Contractor (as it is stipulated to the other
types of contracts).
Modifications of the contract (4.7 from FWC Manual)
In the Letter of Contract template, there isnt any heading referring to the
modifications within the Contract. Therefore, in the most cases the next Letters of
Contract will have the same date as the initial one except a different number,
generating confusion.
General remark: Time sheets even if the FWC is a fee-based contract, there is not
foreseen the compulsoriness of the Consultant to have the TS signed by the
beneficiaries or CA.
B. Restricted tender
Terms of Reference (2.7); Addendum - General Principles (3.5.1)
It is mentioned that any modification to the Contract that implies a budgetary
extension of the project should be initially foreseen in the TOR that, in fact, is
contrary to TOR provisions. This is a contradiction or should be reformulated.
Contract Preparation (3.3.10.6)
One of the necessary documents to the Contract is Explanatory Note; The Standard
format as is foreseen in Annex A6 has not any relevance for the initial Contract.
Eligibility Conditions (2.3.3)
The documents that prove the eligibility of the winner should be laid down in original
and in authenticated translation (if they are in other language then English or in the
language of the beneficiary country).
Negotiate Procedure (3.2.1.2)
There is not stipulated what the Negotiating Report should contain and how the
negotiation must be conducted. For additional services, the negotiation is allowed
when in the Procurement notice for earlier service contract was foreseen this. How
could be this linked with the provision of the TORs?

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Administrative Compliance (3.3.10.2)

The Declaration of intent accepting TORs and General Condition is the same with
Statement (point 3 from Service Tender Submission Form) or are different? If not,
how should the declaration look like?
Art. 3 from General Condition
Which is the difference between the sub-contracting and assignment? To whom may
the Consultant transfer its contract? When submitted the offer, the Consultant (firm
or consortium) has signed all kind of statements, declaration of availability and so on.
Why then is it allowed to transfer its obligation?
Other
Even if the PRAG mentions that it is modified only F section from DIS, there are
some provisions from DIS (F section) that are still applied.
Could be send Tender Dossier on CD? In PRAG there is not mentioned the way of
sending the documents to the short-listed firms.
If there will be necessary any modifications to the TOR within the Inception Report
period (minor modifications), will be these ones the subject of a new approval by the
Delegation? But if there are necessary modifications that could change the TOR
substantially, what type of procedure should be follow?
There isnt the possibility to use the side letter for minor modifications to the Contract
(which made a shorter period to implement the modifications).

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