3. In order to speed up the procedures, service contracts, including those covering the recruitment of consultants and other technical assistance specialists, may be negotiated, drawn up and concluded either by the National Authorizing Officer, on a proposal from the Commission or with its agreement, or by the Commission on behalf of the ACP State concerned and with its agreement, notably where urgent, small-scale or short- term operations are involved and in particular for experts'services in the preparation and execution of operations.
4. At the request of the ACP State concerned, the Commission may recruit and deal with the administrative formalities for individual technica] assistance through its relevant agency.
5. The firms in the ACP States, which may be taken into consideration for technical co-operation operations, shall be selected by agreement between the Commission and the ACP State or States concerned.
6. In exceptional cases and in agreement with the Commission, recourse may be had to consultancy firms or experts that are nationals of third countries.
Article 212.
1. Service contracts shall be negotiated, drafted and concluded by the relevant authorities of the ACP States, in agreement with the Commission delegate, on the basis of general conditions applicable to the award and performance of contracts which shall be adopted by decision of the Council of Ministers, at its first meeting following the entry into force of this Convention, after consultation of the ACP-EEC Committee referred to in Article 193.
2. Until the entry into force of the decision provided for in paragraph 1, the award and performance of service contracts financed by the Fund shall be governed by the national legislation of the ACP States or their established practices regarding international contracts or, if the ACP States so wish, by the general clauses currently used in the contracts financed by the Fund.
Article 213.
In order to enhance the ACP States' capacity to build up their technical skills and improve the know-how of their consultants, co-operation between consultancy firms, consulting engineers, experts and institutions of the Member States and those of the ACP States shall be encouraged by means of temporary associations, subcontracting or the use of experts who are nationals of the ACP States in teams employed by consultancy firms, consulting engineers or institutions in the Member States of the Community.
Article 214.
Technical co-operation shall provide support for educational and training operations in accordance with Article 119.
Chapter 4. Implementation Procedures
Section 1. Programming, Appraisal, Implementation and Evaluation
Article 215.
1. The operations financed by the Community, which are complementary to the efforts of the ACP States, shall be integrated into the economic and social development plans and programmes of the said States and shall tie in with the objectives and priorities which they set at both the national and regional level.
2. At the beginning of the period covered by this Convention and before the indicative programme is drawn up, each ACP State shall obtain from the Commission at the earliest possible time a clear indication of the programmable financial allocation from which it may benefit during that period and shall be provided with any other relevant information.
3. Upon receipt of the information indicated in paragraph 2, each ACP State shall draw up and submit to the Community a draft indicative programme, on the basis of, and consistent with, its development objectives and priorities, containing:
- the priority development objectives at national and region- al level of the ACP State concerned;
- the focal sector or sectors for which Community financial support is considered the most appropriate;
- the most appropriate measures and operations for attainment of the objectives in each of the sectors referred to in the second indent or, where such operations are not sufficiently well-defined, the broad outlines of the programmes to support the country's adopted policies in such sectors;
- specific national projects and programmes designed to achieve the development objectives may also be included where they have been clearly identified, especially those which constitute a follow-up to operations already undertaken;
- any proposals for regional projects and programmes.
4. Programming on the basis of the draft indicative pro- gramme referred to in paragraph 3 shall take place and ideally be completed before the entry into force of this Convention.
5. The draft indicative programme referred to above shall be the subject of exchanges of views between the representatives of the ACP State concerned and those of the Community in order to ensure the maximum effectiveness of co-operation schemes.
In order to enable the two parties to ensure that optimum use is made of the different instruments and resources provided under this Convention, the Community and the ACP States shall carry out, in the light of their common experience, exchanges of views, as soon as possible at a moment agreed between the Commission and the ACP States.
These exchanges of views shall be aimed at enabling the Community to gain knowledge of the development objectives and priorities of the ACP State concerned, both parties to identify, on the basis of this State's proposals, the sector or sectors on which Community's support will be brought to bear and also the resources to be deployed to attain the objectives sought, and the ACP States to ensure that the operations thus agreed on are inserted harmoniously and effectively in their development strategies.
6. The indicative programme shall be adopted by agreement between the Community and the ACP State concerned on the basis of proposals made by that State and shall be binding on both the Community and that State.
7. The operations, projects and programmes referred to in paragraph 3, together with those subsequently identified in the light of the objectives and priorities written into the indicative programme, shall then be appraised in accordance with Article 219.
8. The indicative programmes shall be sufficiently flexible to ensure that operations are kept constantly in line with the objectives and to take account of any changes occurring in the economic situation of each ACP State and of any modification of its initial priorities and objectives. Each programme may be revised at the request of the ACP State in question. In any case, it shall be reviewed at least once during the period covered by this Convention.
Article 216.
1. The indicative programme shall establish the overall amounts of programmable assistance which may be placed at the disposal of each ACP State. Save for funds reserved for emergency aid, interest rate subsidies and regional co-operation, programmable assistance shall comprise on the one hand grants, and on the other hand loans including special loans and, where possible, risk capital.
2. Each ACP State and the Community shall agree on a timetable of commitments at the time of programming, and shall take the necessary steps to ensure the implementation of that timetable.
3. Any balance remaining from the Fund that has not been committed or disbursed by the end of the last year of the application of this Convention shall be utilized until it has been exhausted, in accordance with the same conditions as those laid down in this Convention.
4. A comparative account of commitments and payments shall be drawn up each year by the National Authorizing Officer and the Commission delegate, who shall take the necessary steps to ensure that the timetables referred to in paragraph 2 are adhered to and determine the causes of delays recorded in their execution so that the necessary remedial measures can be proposed.
Article 217.
Unless otherwise provided in this Convention, all decisions requiring the approval of the Community or its relevant departments shall be deemed approved within sixty days of the notification being communicated by the ACP States concerned.
Article 218.
1. (a) The identification of the projects or programmes proposed under the indicative programmes and the preparation of the relevant dossiers shall be the responsibility of the ACP States or of other beneficiaries approved by them.
(b) The dossiers must contain all the information necessary for the appraisal of the projects or programmes.
(c) Where so requested, the Community may provide assistance for drawing up the dossiers.
2. Such dossiers shall be officially transmitted to the delegate for the action required under his powers by the ACP States or the other beneficiaries specified in Article 191(1), Where the beneficiaries are those specified in Article 191(2), the express agreement of the State or States concerned shall be required.
Article 219.
1, In the framework of financial and technical co-operation, project identification, preparation and appraisal shall:
(a) enable the effectiveness and viability of the operations requested, and the return thereon, to be assessed;
(b) take account of cultural and social aspects, both direct and indirect, according to the criteria referred to in Article 117;
(c) adapt financial criteria to take fully into account the longer- term social rate of return, including related secondary effects in ACP States;
(d) be adapted to the local conditions relating to the maintenance and operational capacities of the ACP States;
(e) take national efforts into consideration as well as other resources;
(f) take account of experience gained with operations of the same kind;
(g) be in conformity with the objectives and priorities established by the ACP States.
2. The effectiveness of projects and programmes shall be assessed by means of an analysis comparing the means to be employed with the effects expected from the technical, social, cultural, economic, financial and environmental viewpoints; possible variants shall be examined.
3. Projects and programmes shall be assessed for their viability from the viewpoint of the different economic agents involved in order to ascertain whether the operation will produce the expected effects in a period considered normal for the type of operation concerned.
4. The return on projects and programmes shall be appraised on the basis of the various effects expected, notably the physical, economic, social, cultural and financial effects, if possible on the basis of a cost-benefit analysis.
5. Project and programme appraisal shall be undertaken in close collaboration between the Community and the ACP States.
6. The specific difficulties and constraints of the least-developed ACP States which affect the effectiveness, viability and economic return of projects and programmes shall be taken into account when the said projects and programmes are appraised.
Article 220.
1. The conclusions of the appraisal shall be summarized in a financing proposal.
2. The financing proposal shall contain an advance timetable for the technical and financial implementation of the project or programme, which shall be reproduced in the financing agreement and deal with the duration of the different phases of implementation.
3. The financing proposal drawn up by the relevant departments of the Community shall be forwarded officially to the ACP States concerned, which may, if appropriate, submit comments.
4. The Community's decision shall be taken on the basis of the financing proposal, which may be amended to take account of such comments.
5. Where the financing proposal is not adopted by the Community, the ACP State or States concerned shall be informed of the reasons for that decision.
6. If this situation arises, the representatives of the ACP State or States concerned may request either:
- that the matter be referred to the Article 193 Committee, or
- that they be given a hearing by the Community's decision-making bodies.
7. Following such a hearing, a definitive decision to adopt or reject shall be taken by the relevant Community body, to which the ACP State or States concerned may forward any facts which may appear necessary to supplement the information available to it before the decision is taken.
8. The Community shall take the decision on the financing proposal as soon as possible and, save in exceptional circum- stances, within no more than four months of the date on which the financing proposal was forwarded to the ACP State concerned.
Article 221.
1. With a view to expediting the procedures, financing decisions may deal with multiannual programmes or overall amounts where the financing concerns:
(a) training programmes;
(b) microproject programmes;
(c) trade promotion schemes;
(d) sets of operations of a limited scale in a specific sector;
(e) sets of technical co-operation schemes.
2. For the purpose of implementing paragraph 1 (a), (b), (c) and (d), the ACP States concerned shall prepare and submit to the Commission delegate a programme setting out the broad outlines of the schemes planned.
3. The financing decision concerning the operations referred to in paragraph 1 shall be taken by the Commission within the limits of the overall amounts referred to in the said paragraph.
4. Within the framework of the programmes thus adopted, the decision relating to each scheme under paragraph 1(a), (b), (c) or (d) shall be taken by the ACP State concerned, with the agreement of the Commission delegate, in respect of those operations to be executed within the ACP State and in other cases by the Commission. Such agreement shall be deemed to have been given once a month has elapsed from notification of the decision.
5. At the end of each year, the ACP State concerned, in consultation with the Commission delegate, shall forward a report to the Commission on the implementation of the programmes, operations and schemes referred to in paragraph 1 (a), (b), (c) and (d).
Article 222.
1. For any project or programme financed by a grant from the Fund, 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 financing arrangements and terms.
2. 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.
3. Once the financing agreement has been signed, disbursements shall be made in accordance with the financing plan laid down. Where a detailed estimate needs to be submitted for approval, it shall be deemed approved once thirty days have elapsed since its submission.
Article 223.
1. Overruns on the funds provided under the financing decision shall be borne by the recipient ACP State.
2. The ACP State shall set aside, within their indicative programme, a reserve fund to cover cost increases and contingencies.
3. Financing agreements for all projects and programmes shall make adequate provisions for appropriations to cover cost increases and contingencies.
4. Once 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.
5. By way of exception, overruns may be financed by the Community if it is not decided by common agreement to scale down the project or programme or if it is not possible to cover them by other resources.
6. However, any unexpended balance left upon closure of projects and programmes financed under the indicative programme which has not been re-allocated to the said programme for the financing of new operations may be allocated to cover overruns. The National Authorizing Officer may, in consultation with the Chief Authorizing Officer, use such unexpended balance for covering cost overruns, within the limits of a ceiling set at 15% of the financial commitment for the project or programme concerned.
7. In order to cut down the likelihood of overruns to a minimum, the ACP States and the Community shall make every effort to
- gather together all the factors required to assess the operations, notably the estimate of the actual costs;
- wherever possible, issue the invitations to tender before taking the financing decision.
Article 224.
1. (a) Evaluation shall be undertaken during the execution 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 operation and its results.
(b) Such a report may serve to re-orient the project or pro- gramme during execution 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 pro- grammes. Evaluation shall concern the results, by comparison with the objectives, and also the administration, functioning and maintenance of the completed projects. The two parties shall study the results of such evaluation.
(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.
Section 2. Execution of Financial and Technical Co-operation
Article 225.
1. The execution of financial and technical co-operation shall be carried out with a minimum of administrative formalities and using simplified procedures, so that projects and programmes may be implemented rapidly and efficiently.
2. The Community and the ACP States respectively shall take adequate measures to ensure that the administrative bodies entrusted with the following duties and responsibilities can carry them out promptly and efficiently:
(a) preparation and approval of invitations to tender;
(b) issue of invitations to tender;
(c) receiving and examining tenders;
(d) deciding the outcome of tenders, submitting a proposal for the placing of contracts and giving final approval of same;
(e) signing of contracts and related documents.
3. The ACP States, and other beneficiaries authorized by them, shall execute the projects and programmes financed by the Community; they shall in particular be responsible for preparing, negotiating and concluding the necessary contracts for the execution of these operations.
Article 226.
1. The Commission shall appoint the Chief Authorizing Officer of the Fund, who 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 216(2), the Chief Authorizing Officer shall accordingly commit, clear and authorize expenditure and keep the accounts of commitments and authorizations.
2, In close co-operation with the National Authorizing Officer, the Chief Authorizing Officer shall ensure equality of conditions for participation in invitations to tender and see to it that there is no discrimination in the invitation to tender dossier and that the tender selected is economically the most advantageous. The Chief Authorizing Officer shall 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 228.
3. Subject to the powers exercised by the National Authorizing Officer under Article 227, the Chief Authorizing Officer shall make any adaptation arrangements and commitment decisions that prove necessary to ensure proper execution of approved operations from the economic and technical viewpoints.
Article 227.
1. (a) The Government of each ACP State shall appoint a National Authorizing Officer to represent the national authorities 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 his responsibilities in connection with the preparation, submission and appraisal of projects and pro- grammes, the National Authorizing Officer shall, in close co-operation with the Commission delegate, issue invitations to tender, receive tenders, preside over the examination of tenders, establish the results of this examination, sign contracts and riders thereto and estimates and notify the Commission delegate thereof. He shall submit the invitation to tender dossier to the Commission delegate for agreement before issuing invitations to tender.
3. (a) The National Authorizing Officer shall transmit the result of the examination of the tenders and a proposal for placing the contract to the Commission delegate who shall check that the tenders conform to the regulations laid down and give his comments within the time limit specified in Article 228(3)(c) and (d), with effect from the date on which the delegate receives the proposal.
(b) After this time limit, the National Authorizing Officer's proposal shall be deemed to have been approved by the Commission.
4. The National Authorizing Officer shall clear and authorize expenditure within the limits of the funds assigned to this. He shall remain financially liable until the Commission gives final clearance for the operations for the execution of which he is responsible.
5. During the execution operations, and subject to the requirement to inform the Commission delegate, the National Authorizing Officer shall make any adaptation arrangements necessary to ensure the proper execution of approved operations from the economic and technical viewpoint.
Accordingly, the National Authorizing Officer shall decide on:
(a) technical adjustments and alterations in matters of detail, so long as they do not affect the technical solutions adopted and remain within the limits of the reserve for minor adjustments;
(b) minor alterations to estimates during execution;
(c) transfers from item to item within estimates;
(d) changes of site for multiple-unit projects where justified on technical, economic or social 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, 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;
(k) hiring of consultants and other technical assistance ex- perts.
6. For contracts of less than 4 million ECU and generally for any contract subject to an expedited procedure, decisions taken by the National Authorizing Officer, under the powers conferred upon him, shall be deemed approved by the Commission within thirty days of their notification to the Commission delegate.
Article 228.
1. (a) For the purpose of implementing this Convention and in respect of the resources administered by the Commission, the latter shall be represented in each ACP State, or in each regional grouping which expressly so requests, by a delegate approved 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 in which the delegate is not resident.
2. At the express request of the ACP State, the delegate shall give technical assistance in preparing and appraising projects financed from the Fund's resources. To this end, he may participate in preparing dossiers, in negotiating, with external technical assistance, contracts for studies, for the services of experts and for works supervision, in seeking ways to simplify project appraisal and implementation procedures and in preparing invitation to tender dossiers.
3. The Commission shall give its delegate the necessary instructions and delegated powers to facilitate and expedite the preparation, appraisal and execution of projects financed from the Fund's resources administered by it. The delegate shall work in close co-operation 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 within one month wherever invitations to tender are to be issued by expedited procedure, or in other cases transmit it, within one month of receiving it, to the Chief Authorizing Officer for publication;
(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 proposal for the placing of the contract in all cases where invitations to tender are issued by expedited procedure;
(d) approve within one month the National Authorizing Officer's proposal for the placing of the contract, irrespective of its value, wherever the following three conditions are fulfilled :
- the tender selected is the lowest;
- is economically the most advantageous and
- does not exceed the sum earmarked for the contract;
(e) where the conditions set out in (d) 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 the examination of the tenders and the proposal for the placing of the contract; in any event, the decision on the award of the contract shall be taken before the expiry of the tender validity period.
4. The delegate shall prepare the financing proposals.
5. The delegate shall, on a regular basis, and in certain cases acting on specific instructions from the Commission, inform the national authorities of Community activities which may directly concern co-operation between the Community and the ACP States.
6. The delegate shall co-operate with the national authorities in evaluating operations regularly. He shall draw up reports on the outcome of such evaluations and communicate them to the ACP State concerned and the Commission.
7. Each year the delegate shall assess the Fund's operations in the ACP State or regional grouping where he represents the Commission. Reports drawn up in this connection shall be communicated to the Commission and the ACP State concerned.