5. In the event of the ACP State considering that the project should be submitted as it stands to the decision-making body of the Community, that State may communicate any facts which appear necessary to supplement the information available to that body before the final decision. It may also, before a decision is taken by that body, be heard by the President and the members of the Council of the European Communities in order to submit information additional to that mentioned above.
6. Where the Community's decision-making bodies are unable to pass a project for financing, the ACP State concerned shall be informed of the reasons for such a decision.
Article 114.
1. With a view to accelerating the procedures, financing proposals may deal with multiannual programmes or overall amounts where the financing concerns:
(a) sets of training schemes;
(b) micro-project programmes;
(c) sets of technical cooperation and trade promotion schemes.
Financing decisions on individual schemes and projects shall be taken within the framework of such programmes and overall amounts.
2. In the same spirit, decisions on projects and programmes involving a limited amount may be taken by accelerated procedure.
3. Any measures required to streamline and speed up procedures shall be taken in respect of all projects and programmes implemented under this Convention.
Article 115.
1. In respect of the Fund's resources administered by the Commission, for any project or programme on which a financing decision has been taken a financing agreement shall be drawn up between the Commission, acting on behalf of the Community, and the ACP State or States concerned. The agreement shall specify in particular the details of the Fund's financial commitment and the arrangements for and terms of the financing. A timetable for commitments and payments shall be annexed to the financing agreement.
2. In addition, for any project or programme financed by a special loan, a loan contract shall be drawn up between the Commission, acting on behalf of the Community, and the borrower.
Article 116.
Any unexpended balance left upon closure of the accounts of projects or programmes financed from the Fund's resources administered by the Commission shall accrue to the ACP State concerned and shall be so specified in the Fund's books. It may be used in the manner laid down in this Convention for the financing of projects and programmes.
Article 117.
1. (a) Cost overruns incurred during the implementation of projects or programmes financed from the Fund's resources administered by the Commission shall be borne by the ACP State or States concerned, subject to the following provisions.
(b) However, the financing agreements for all projects shall make provision for appropriations to cover cost increases and contingencies.
(c) The ACP States may also set aside a reserve. for this purpose in their indicative programmes.
2. As soon as it appears that cost overruns are likely to be incurred, the national authorizing officer shall so inform the chief authorizing officer through the Commission delegate. The chief authorizing officer shall on this occasion be informed of the measures the national authorizing officer intends to take in order to cover such cost overruns, whether by reducing the scale of the project or programme or by calling on national or other non-Community resources.
3. If it appears impossible to reduce the scale of the project or programme or to cover the cost overruns by drawing on national or other non-Community resources, the Community body responsible for taking the financing decisions may, in each case, take a supplementary commitment decision and finance the relevant expenditure.
4. Without prejudice to the arrangements provided for in paragraphs 2 and 3, the national authorizing officer shall, in coordination with the chief authorizing officer, use the unexpended balances referred to in Article 116 for covering cost overruns on a project or programme, within the limits of a ceiling set at 15 % of the financial commitment for the project or programme concerned.
Article 118.
1. (a) Evaluation may be undertaken during the implementation of projects and programmes. The ACP States concerned and the Community shall draw up a joint progress report, at agreed intervals, on the various aspects of the project and its results.
(b) Such a report may serve to re-orient the project during implementation if a joint decision is taken to this effect.
2. (a) The ACP States concerned and. the Community shall organize the joint evaluation of completed projects and programmes. Evaluation shall concern the results, by comparison with the objectives, and also the administration, operation and maintenance of the schemes. The two parties shall study the results of such evaluations.
(b) The relevant authorities of the Community and of the ACP States concerned shall each take the appropriate measures called for by the results of the evaluation work.
Chapter 5. Policy and Guidelines
Article 119.
1. The Council of Ministers shall examine at least once a year whether the objectives of financial and technical cooperation are being attained and shall also examine the general problems resulting from implementation of that cooperation. This examination shall also cover regional cooperation and measures in favour of the least-developed, land-locked and island ACP States.
2. To this end the Commission shall submit to the Council of Ministers an annual report on the management of Community financial and technical aid. This report, which shall be drawn up in collaboration with the Bank for the parts of the report which concern it, shall be forwarded to the ACP-EEC Committee referred to in Article 108 (6). It shall in particular show the position as to the commitment, implementation and use of the aid, broken down by type of financing and by recipient State, and the results of work done to evaluate projects and programmes.
3. This information shall be accompanied by the results of the work of the ACP-EEC Committee referred to in Article 108 (6) on the general problems of improving the implementation of financial and technical cooperation and by the reports drawn up by groups of experts whom the Council of Ministers may periodically instruct to study the causes of, and means of eliminating, any difficulties or bottlenecks on either side.
4. On the basis of the information referred to in paragraphs 2 and 3, the Council of Ministers shall define the policy and guidelines of financial and technical cooperation and shall adopt resolutions on the measures to be taken by the Community and the ACP States in order to ensure that the objectives of such cooperation are attained.
Chapter 6. Execution of Financial and Technical Cooperation
Article 120.
The ACP States, and the other beneficiaries authorized by them in accordance with Article 94, shall implement the projects and programmes financed by the Community.
Accordingly, they shall be responsible in particular for preparing negotiating and concluding the necessary contracts for the implementation of the operations.
Article 121.
1. The Commission shall appoint the chief authorizing officer of the Fund, who shall ensure that financing decisions are carried out and shall be responsible for managing the Fund's resources. Taking account in particular of the advance timetables for commitments and payments referred to in, Article 110, the chief authorizing officer shall accordingly commit, clear and authorize expenditure, and keep the accounts of commitments and authorizations.
2. In close cooperation with the national authorizing officer, the chief authorizing officer shall ensure equality of conditions for participations in invitations to tender, and see to it that there is no discrimination and that the tender selected is economically the most advantageous. In this connection the chief authorizing officer shall approve the dossiers before invitations to tender are issued, receive the result of the examination of the tenders and approve the proposal for the placing of the contract, subject to the powers exercised by the Commission delegate under Article 123.
3. Subject to the powers exercised by the national authorizing officer under Article 122 (4), the chief authorizing officer shall take any adaptation measures and commitment decisions necessary to ensure the proper execution of approved projects and programmes under the best ecnomic and technical conditions.
Article 122.
1. (a) The government of each ACP State shall appoint a national authorizing officer to represent the authorities of that officer's country in all operations financed from the Fund's resources administered by the Commission.
(b) The national authorizing officer may delegate some of these functions and shall inform the chief authorizing officer of any such delegation.
2. In addition to the functions of the national authorizing officer in connection with the preparation, submission and appraisal of projects, that officer shall:
(a) ensure, in close cooperation with the chief authorizing officer, that there is equality of conditions for participation in invitations to tender, that there is no discrimination and that the tender which is economically the most advantageous is chosen;
(b) prepare invitation to tender dossiers and submit them to the delegate for agreement before issuing invitations to tender;
(c) issue invitations to tender;
(d) receive tenders, preside over the examination of tenders, decide the outcome of the said examination and transmit it to the delegate with a proposal for the placing of the contract;
(e) sign contracts and riders thereto and estimates, and notify the Commission delegate thereof.
3. The national authorizing officer shall clear and authorize expenditure within the limits of the funds assigned, taking account, in particular, of the advance timetables for commitments and payments referred to in Article 110. The national authorizing officer shall remain responsible for the funds entrusted to him until the Commission authorizes the operations for the execution of which the funds were entrusted to him.
4. During the implementation of projects, and subject to the requirement to inform the Commission delegate, the national authorizing officer shall take any adaptation measures necessary to ensure the proper ex ecution of approved projects or programmes under the best economic and technical conditions.
Accordingly, the national authorizing officer shall decide on:
(a) technical adjustments and alterations on matters of detail, so long as they do not affect the technical solutions adopted and remain within the limits of the provision for minor adjustments;
(b) minor alterations to estimates during implementation;
(c) transfers from item to item within estimates;
(d) changes of site for multiple-unit projects where justified on technical or economic grounds;
(e) imposition or remission of penalties for delay;
(f) acts discharging guarantors;
(g) purchase of goods, irrespective of their origin, on the local market;
(h) use of construction equipment and machinery not originating in the Member States or ACP States provided there is no production of comparable equipment and machinery in the Member States or ACP States;
(i) subcontracting;
(j) final acceptance; however, the delegate must be present at provisional acceptances and endorse the corresponding minutes and, where appropriate, be present at the final acceptance, in particular where the extent of the reservations recorded at the provisional acceptance necessitates major additional work,
5. For contracts of less than 3-5 million EUA and in general for all contracts to which the accelerated procedure applies, decisions taken by the national authorizing officer under the powers vested in that officer shall be deemed approved by the Commission within 30 days of the notification to the Commission delegate.
Article 123.
1. (a) The Commission shall appoint a delegate to each ACP State or group of ACP States to represent it for the purpose of facilitating the application of the Convention. The appointment of the Commission delegate shall be agreed by the ACP State or States concerned.
(b) Where a delegate is appointed to a group of ACP States, appropriate steps shall be taken to ensure that the delegate is represented by a deputy resident in each of the States concerned in which the delegate is not resident.
2. The Commission shall give its delegate the necessary instructions and delegated powers to facilitate and expedite the preparation, appraisal and implementation of projects financed from the Fund's resources administered by it. The delegate shall work in close cooperation with the national authorizing officer and deal with that officer on behalf of the Commission. In this capacity the delegate shall:
(a) approve the invitation to tender dossier wherever invitations to tender are to be issued by accelerated procedure, or in other cases transmit it to the chief authorizing officer for that officer's agreement;
(b) be present at the opening of tenders, and receive a copy of them and of the results of their examination;
(c) approve within one month the national authorizing officer's proposal for the placing of the contract wherever the three following conditions are fulfilled: the tender selected is the lowest, it is economically the most advantageous and does not exceed the sum earmarked for the contract;
(d) approve within one month the proposal for the placing of the contract in all cases where invitations to tender are issued by the accelerated procedure;
(e) where the conditions set out in (c) are not fulfilled, forward the proposal for the placing of the contract to the chief authorizing officer for agreement, and the chief authorizing officer shall decide thereon within two months of the receipt by the Commission delegate of the final outcome of examination of the tenders and the proposal for the placing of the contract;
(f) participate in the preparation and negotiation of service contracts,
3. (a) The delegate shall make sure, on behalf of the Commission, that the projects and programmes financed from the Fund's resources administered by the Commission are properly implemented from the financial and technical angles.
(b) Accordingly, the delegate shall endorse contracts, riders thereto and estimates, as well as payment authorizations issued by the national authorizing officer.
4. Each year the delegate shall prepare a summary of the Fund's operations in the ACP State or States to which he or she is appointed. The report shall be communicated by the Commission to the ACP State or States concerned.
5. The delegate shall cooperate with the national authorities in evaluating completed projects and programmes. Reports on the outcome of the evaluation shall be drawn up and communicated to the ACP States concerned and the Commission.
6. The delegate shall inform the national authorities of Community activities which may directly concern cooperation between the ACP States and the Community.
7. (a) The delegate shall maintain continuous contact with the national authorizing officer for the purpose of analyzing and remedying specific problems encountered in the implementation of financial and technical cooperation.
(b) To that end the delegate shall in particular make regular checks to see that operations are proceeding in accordance with the schedules laid down in the advance timetables established under Article 110.
8. The delegate shall communicate to the ACP State all information and relevant documents on the procedures for implementing financial and technical cooperation.
9. The delegate shall prepare the financing proposals.
Article 124.
1. For the purpose of effecting payments in the national currencies of the ACP States, accounts denominated in the currency of one of the Member States shall be opened in each ACP State in the Commission's name with a national public or semi-public financial institution, chosen by mutual agreement between the ACP State and the Commission. This institution shall exercise the functions of paying agent.
2. The accounts referred to in paragraph 1 shall be replenished by the Commission by reference to actual cash requirements, account being taken of the advance timetable for payments provided for in Article 110. Transfers shall be made in the currency of one of the Member States and shall be converted into the national currency of the ACP State as and when payments fall due.
3. The paying agent shall not be remunerated for its services; no interest shall be payable on deposited funds.
4. Within the limits of the funds available, the paying agent shall make the disbursements authorized after verifying that the supporting documents provided are substantively correct and in order, and that the discharge is valid.
5. For the purpose of effecting payments in currencies other than the national currencies of the ACP States, payment for services provided shall be made on the instructions of the Commission by drawing on its accounts.
Chapter 7. Competition and Preferences
Article 125.
1. As regards operations financed by the Community, participation in invitations to tender and contracts shall be open on equal terms to all natural persons and companies or firms falling within the scope of the Treaty and to all natural persons and companies or firms of the ACP States.
The companies or firms referred to in the preceding paragraph shall be those defined in Article 161 of the Convention.
2. Measures to encourage the participation of ACP States' undertakings in the execution of contracts shall be taken in order to permit optimum use of these States' natural and human resources.
3. Paragraph 1 shall not imply that the funds provided by the Community must be used exclusively for purchases of goods or payment for services in the Members States and the ACP States.
4. Any participation by third countries in contracts financed by the Community must be of an exceptional nature and be authorized case by case, at the reasoned request of the ACP State concerned, by the competent body of the Community. Unless other appropriate factors prevail account shall be taken of a desire to avoid excessive increases in the cost of projects attributable either to the distances involved and transport difficulties or to the delivery date, notably in the case of the least-developed, land-locked and island ACP States.
5. The Commission and the ACP State concerned shall take the appropriate measures to provide the Community body with the information needed for a decision on such derogations. This body shall examine the information with particular attention in the case of ACP States whose geographical location greatly reduces the competitiveness of suppliers and contractors from the Community and the ACP States.
6. Participation by third countries in contracts financed by the Community may be authorized where the Community participates in the financing of regional or inter-regional cooperation schemes involving third countries and in the joint financing of projects with other providers of funds.
Article 126.
1. The ACP States and the Commission shall take the necessary measures to ensure the widest possible participation on equal terms in invitations to tender and works and supply contracts financed by the Fund's resources managed by the Commission.
2. The purpose of these measures shall be in particular:
(a) to ensure advance publication in reasonable time of invitations to tender in the Official Journal. of the European Communities, the official journals of the ACP States and any other suitable information media;
(b) to eliminate discriminatory practices or technical specifications which might stand in the way of widespread participation on equal terms;
(c) to encourage cooperation between the undertakings of the Member States and of the ACP States, for example by means of preselection and the creation of groups.
Article 127.
1. As a general rule, works and supply contracts financed by the Fund's resources managed by the Commission shall be concluded following an open invitation to tender.
2. However, for operations relating to emergency aid, and for other operations where the urgency of the situation is recognized or where the nature, minor importance or particular characteristics of the works or supplies so warrant, the ACP States may, in agreement with the Commission, exceptionally authorize:
- the placing of contracts after restricted invitations to tender,
- the conclusion of contracts by direct agreement,
- the performance of contracts through public works departments.
3. Furthermore, for operations costing under 3-5 million EUA, recourse to public works departments may be authorized where the recipient ACP State has sufficient suitable equipment and qualified staff available in its national departments.
Article 128.
To promote the widest possible participation by national undertakings of the ACP States in the performance of works and supply contracts financed from the Fund's resources managed by the Commission:
(a) an accelerated procedure for issuing invitations to tender shall be used for carrying out works estimated to cost less than 3-5 million EUA. Under this procedure, publication shall be confined to the ACP State concerned and the neighbouring ACP States and the time limits for the submission of tenders shall be fixed in accordance with the rules in force in the ACP State concerned.
The use of this accelerated procedure shall not exclude the possibility of the Commission's proposing an international invitation to tender to the ACP State concerned where the nature of the works to be undertaken or the advantages of wider participation would appear to justify inviting international competition;
(b) for carrying out works whose value is less than 3-5 million EUA, national undertakings of the ACP States shall be accorded a 10 % preference where tenders shall be fixed in accordance with the rules in force in the ACP State concerned.
This preference shall be confined to national undertakings of the ACP States within the meaning of the national laws of these States provided that their residence for tax purposes and main business are established in an ACP State and that a significant share of the capital and management staff is supplied by one or more ACP States;
(c) for the delivery of supplies, undertakings involved in industrial or craft production of the ACP States shall be accorded a 15 % preference where tenders of equivalent technical and economic quality are compared.
This preference shall be confined to national undertakings of the ACP States which provide a sufficient margin of added value.
Article 129.
In order to ensure the rapid and effective implementation of projects and programmes financed by the Community in the least-developed ACP States, the Community shall give special priority to the application of specific measures in the following areas:
(a) the award of contracts following accelerated invitations to tender on the terms specified in Article 128;
(b) the placing of contracts following restricted invitations to tender and the conclusion of contracts by direct agreement on the terms specified in Article 127;
(c) the performance of contracts through public works departments on the terms specified in Article 127;
(d) the placing of service contracts by the Commission, in agreement with the ACP State concerned where the scheme is urgent, of minor importance or short duration, particularly in the case of appraisals concerned with the preparation of projects and programmes;
(e) the arrangement of payment procedures in such a way that the States concerned do not have to bear any pre-financing costs.
Article 130.
1. For each operation the criteria for selecting the tender that is economically the most advantageous shall take into account inter alia the qualifications of and the guarantees offered by the tenderers, the nature and conditions of implementation of the works or supplies and the price, operating costs and technical value of those works or supplies.
2. Where two tenders are acknowledged to be equivalent on the basis of the criteria stated above, preference shall be given to the tender of the undertaking which is a national of an ACP State or if no such tender is forthcoming to the one which permits the greastest possible use of the physical and human resources of the ACP States,
3. The ACP States and the Commission shall ensure that all the selection criteria are specified in the invitation to tender dossier.
Article 131.
The general conditions applicable to the award and performance of works and supply contracts financed from the Fund's resources administered by the Commission are contained in the general conditions which, on a proposal from the Commission, shall be adopted by decision of the Council of Ministers at its first meeting following the entry into force of this Convention.
Article 132.
1. Any dispute arising between the authorities of an ACP State and a contractor, supplier or provider of services on the occasion of the placing or performance of a contract financed by the Fund shall be settled by arbitration in accordance with rules of procedure adopted by the Council of Ministers.
2. The rules of procedure referred to above shall be adopted, on a proposal, by a decision of the Council of Ministers not later than its first meeting following the entry into force of this Convention.
Chapter 8. Regional Cooperation
Article 133.
1. In the implementation of financial and technical cooperation, the Community shall provide effective assistance for attaining the objectives which the ACP States set themselves in the context of regional and inter-regional cooperation. This assistance shall aim to:
(a) accelerate economic cooperation and development both within and between the regions of the ACP States;
(b) accelerate diversification of the economies of the ACP States;
(c) reduce the economic dependence of the ACP States on imports by maximizing output of those products for which the ACP States in question have real potential;
(d) create sufficiently wide markets within the ACP States and neighbouring States by removing the obstacles which hinder the development and integration of those markets;
(e) promote and expand trade between the ACP States and with neighbouring third countries;
(f) maximize the use of resources and services in the ACP States;
(g) strengthen organizations set up by the ACP States to promote regional cooperation and integration;
(h) implement specific measures in favour -of the land-locked and island countries, notably in respect of transport and communications.
2. To this end, an amount of 600 million EUA from the financial resources provided for in Article 95 for the economic and social development of the ACP States shall be reserved for financing their regional and inter-regional projects and for participation in any co-financing arrangements that may be made to implement such projects.
Article 134.
1. (a) Within the meaning of the Convention, regional cooperation shall apply to relations either between two or more ACP States, or between one or more ACP States on the one hand and one or more neighbouring non-ACP countries on the other.
(b) Inter-regional cooperation shall apply to relations either between two or more regional organizations of which ACP States form part or between one or more ACP States and a regional organization.