Article 276.
1. Technical cooperation may be either of a specific or a general nature.
2. Technical cooperation of a general nature shall include inter alia:
(a) development studies, studies of prospects and resources for economic development and diversification in the ACP States, and of problems of interest to the ACP States as a whole or to any group of those States;
(b) studies to find practical solutions to the indebtedness, debt-servicing and balance-of-payments problems of ACP States;
(c) sectoral or product studies;
(d) the provision of experts, advisers, technicians and instructors for specific assignments and for limited periods;
(e) the supply of instructional, experimentation, research and demonstration equipment;
(f) general information and documentation including statistics, to promote the development of the ACP States and the achievement of the aims of cooperation; exchanges of executive and specialized staff,
(g) students, research workers, motivators and heads of social or cultural groups or associations;
(h) the granting of study or training awards, particularly to persons already in employment and requiring further training;
(i) the organization of seminars or sessions for training, further training and information;
(j) the setting up or strengthening of information and documentation instruments, particularly for exchanges of know-how, methods and experience between ACP States and between them and the Community;
(k) cooperation between or twinning of ACP States' institutions, particularly universities, and other ACP and EEC training and research establishments;
(l) support for significant cultural events.
3. Technical cooperation related to specific operations shall include inter alia:
(a) technical, economic, statistical, financial and commercial studies, as well as research and surveys required to prepare projects or programmes, including those on structural adjustment and investment;
(b) preparation of projects and programmes;
(c) execution and supervision of projects and programmes;
(d) implementation of temporary measures required for the establishment, launching, operation and maintenance of a specific project;
(e) monitoring and evaluation of operations;
(f) integrated taining, information and research programmes.
Article 277.
The Community shall take practical measures to increase and improve the information placed at the disposal of ACP States concerning the availability and qualifications of relevant consultants.
Article 278.
1. The choice of whether to use the services of consultancy companies or firms or of individual experts shall take account of the nature of the problems and the scale and complexity of the technical means and management resources required, as well as the comparative cost of the two solutions. In addition, measures shall be taken to ensure that recruiters can distinguish clearly between different levels of competence and experience on an international level. The choice of contractors and their staff shall refer to the following criteria:
(a) professional skills (technical and training ability) and human qualities;
(b) respect for the cultural values and the political and administrative circumstances of the ACP State or States concerned;
(c) knowledge of the language necessary for the execution of the contract;
(d) practical experience of problems of the type to be dealt with;
(e) cost.
2. The recruitment of technical cooperation staff, the determination of their aims and functions and duration of their missions, their remuneration and the ways in which they contribute to the development of the ACP States to which they are assigned, must conform to the principles for technical cooperation policy laid down in Article 275. The procedures to be applied in this context must ensure objectivity in terms of the choice and quality of the services provided. The following principles shall also apply:
(a) recruitment shall be carried out by the national institutions that will use the technical assistance, in accordance with the relevant provisions on competition and preference;
(b) efforts shall be made to facilitate direct contact between the candidate and the future user of the technical assistance;
(c) the use of alternative technical assistance delivery systems should be encouraged through the use of volunteers, non-governmental organizations, retired executives and twinning arrangements;
(d) when considering a request for technical assistance, the ACP States and the Commission delegation shall compare the costs and benefits of different ways of transferring technology and increasing capabilities;
(e) the tender dossier shall provide that each tenderer must indicate in his tender what methods he intends to adopt and what staff he intends to employ and the strategy for promoting ACP national and/or regional local capabilities once the contract is put into effect;
(f) the Community shall provide the recipient ACP States with detailed information on the full cost of technical assistance in order to enable ACP States to negotiate the contracts in a cost-effective manner.
Article 279.
In order to enhance the ACP States' capacity to build up their technical skills and improve the know-how of their consultants, the Community and the ACP States shall encourage cooperation partnership arrangements between consultancy firms, consulting engineers, experts and institutions of the Member States of the Community and those of the ACP States. To this end, the Community and the ACP States shall make every effort to:
(a) encourage 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;
(b) inform tenderers in the tender dossier of the selection criteria and preferences provided for in the Convention, particularly those relating to the encouragement of the use of ACP human resources.
Article 280.
1. Subject to the provisions of this Chapter, the award of service contracts and the rules of competition and preference therefore shall be in accordance with Section 5 of Chapter 5.
2. Technical cooperation shall provide support for the educational and training operations, multiannual training programmes, including awards, as referred to in Chapter 1 of Title XI of Part Two.
Chapter 5. Implementation Procedures
Section 1. Programming
Article 281.
1. At the beginning of the period covered by the Convention and before the indicative programme is drawn up:
(a) each ACP State shall obtain from the Community a clear indication of the total programmable financial allocation from which it may benefit during that period as well as any other relevant information;
(b) each ACP State eligible for the specific resources earmarked for adjustment support in accordance with Article 246 shall be notified of the estimated initial instalment that it may receive.
2. Upon receipt of the information referred to above, 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. The draft indicative programme shall contain:
(a) the priority development objectives of the ACP State concerned at national and regional level;
(b) the focal sector or sectors for which support is considered the most appropriate;
(c) the most appropriate measures and operations for attaining the objectives in the focal sector or sectors or, where such operations are not sufficiently well- defined, the broad outlines of the programmes to support the Stateâs adopted policies in the focal sectors;
(d) if possible, specific, clearly identified national projects and programmes, and especially those which constitute a follow-up to existing projects and programmes;
(e) where appropriate, a limited part of the programmable resources not allocated to the focal: sector which the ACP State proposes to use for structural adjustment support;
(f) any proposals for regional projects and programmes.
Article 282.
1. The draft indicative programme shall be the subject of an exchange of views between the ACP State concerned and the Community, due regard being given to the domestic needs of the ACP States and their sovereign rights to determine their development strategies, priorities and models as well as their overall macro-economic and sectoral policies.
2. The indicative programme shall be adopted by agreement between the Community and the ACP State concerned on the basis of the draft indicative programme proposed by that State and shall, when adopted, be binding on both the Community and the State concerned. It shalt specify inter alia:
(a) the focal sector or sectors in which the Community's support will be given and the resources to be deployed for that purpose;
(b) the measures and actions necessary to achieve the objectives of the sectors agreed upon;
(c) the timetable of commitments and measures to be taken;
(d) the reserve set aside for insurance against possible claims, and to cover cost increases and contin- gencies;
(e) the projects and programmes outside the focal sector or sectors as well as the proposals for regional projects and programmes and, where appropriate, the part for structural adjustment support.
3. The indicative programme shall be sufficiently flexible to ensure that operations are kept constantly in line with objectives and to take account of any changes occurring in the economic situation, priorities and objectives of the ACP States. It may be revised at the request of the ACP State concerned.
Article 283.
The Community and the ACP State shall take all necessary measures to ensure that the indicative programme is adopted in the shortest possible time, preferably before the entry into force of this Convention.
Article 284.
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 assistance, interest rate subsidies and regional cooperation; programmable assistance shall comprise grants and a part of risk capital.
2. Any balance remaining from the Fund that has not been committed or disbursed by the end of the last year of application of the Financial Protocol shall be utilized until it has been exhausted, in accordance with the same conditions as those laid down in this Convention.
3. 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 timetable of commitments agreed at the time of programming is adhered to and determine the causes of delays recorded in their execution so that the necessary remedial measures can be. proposed.
Section 2. Project Identification, Preparation and Appraisal
Article 285.
The identification and preparation of projects and programmes shall be the responsibility of the ACP State concerned or any other eligible beneficiary.
Article 286.
Project or programme dossiers prepared and submitted for financing must contain all information necessary for the appraisal of the projects or programmes or, where such projects and programmes have not been completely defined, provide the broad outlines necessary for their appraisal. Such dossiers shall be officially transmitted to the delegate by the ACP States or the other beneficiaries in accordance with this Convention. In the case of beneficiaries other than ACP States, the express agreement of the State concerned shall be required.
Article 287.
1. The appraisal of projects and programmes shall be undertaken jointly by the ACP State or States and the Community. In order to expedite the procedure, the Commission shall give the necessary powers to its delegate to undertake this joint appraisal.
2. Project and programme appraisal shall take into account the specific characteristics and constraints of each ACP State as well as the following factors:
(a) effectiveness and viability of the operations requested and the returns thereon, if possible on the basis of a cost-benefit analysis, possible variants being examined;
(b) cultural, social, gender and environmental aspects, both direct and indirect, and impact on the popu- lations;
(c) availability of local manpower and other resources necessary to implement, operate and maintain the projects and programmes;
(d) training and institutional development necessary to achieve project or programme goals;
(e) burden of recurrent cost on the recipient;
(f) national commitments and efforts;
(g) experience gained from operations of the same kind;
(h) results of studies already undertaken on similar projects or programmes in order to expedite implementation and minimize costs.
3. 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.
4. The general guidelines and criteria for appraisal of projects and programmes shall be developed during the Convention by the ACP-EEC Development Finance Cooperation Committee in the light of evaluation work, taking into account the necessary flexibility in adapting these criteria to the specific situation of each ACP State.
Section 3. Financing Proposal and Decision
Article 288.
1. The conclusions of the appraisal shall be summarized by the delegate in a financing proposal in close collaboration with the national authorizing officer.
2. The financing proposal shall contain an advance timetable for the technical and financial implementation of the project or programme, and shall deal with the duration of the different phases of implementation.
3. The financing proposal shall:
(a) take into account the comments of the ACP State or States concerned;
(b) be forwarded by the delegate simultaneously to the ACP State or States concerned and the Commission.
4. The Commission shall finalize the financing proposal and forward it, with or without amendment, to the Community's decision-making body. The ACP State or States concerned shall be given an opportunity to comment on any amendment of substance which the Commission intends to make to the document; these comments shall be reflected in the amended financing proposal.,
Article 289.
1. Subject to Article 288 (4), the Community's decision-making body shall communicate its decision within 120 days from the date of communication by the delegate referred to in Article 288 (3) (b).
2. Where the financing proposal is not adopted by the Community, the ACP State or States concerned shall be informed immediately of the reasons for that decision. In such a case, the representatives of the ACP State or States concerned may, within 60 days thereafter, request either:
(a) that the matter be referred to the ACP-EEC Development Finance Cooperation Committee set up under the Convention; or
(b) that they be given a hearing by the Community's decision-making body.
3. Following such a hearing, a definitive decision to adopt or reject the financing proposal shall be taken by the relevant Community body, to which the ACP State or States concerned may forward, before the decision is taken, any facts which may appear necessary to supplement the information available to it.
Article 290.
1. With a view to expediting procedures and in derogation from the provisions set out in Articles 288 and 289, financing decisions may deal with multiannual programmes where the financing concerns:
(a) training;
(b) micro-projects;
(c) trade promotion;
(d) sets of operations of a limited scale in a specific sector;
(e) technical cooperation.
2. In these cases, the ACP State concerned may submit to the delegate a multiannual programme setting out the broad outlines, the types of actions envisaged and the financial commitment proposed.
The financing decision on each multiannual programme shall be taken by the chief authorizing officer. The letter from the chief authorizing officer to the national authorizing officer notifying such decision shall constitute the financing agreement as per Article 291.
Within the framework of multiannual programmes thus adopted, the national authorizing officer shall implement each individual action in accordance with the relevant provisions of the Convention and the terms of the financing agreement referred to above.
At the end of each year, the national authorizing officer, in consultation with the delegate, shall forward a report to the Commission on the implementation of the programmes,
Section 4. Financing Agreement and Cost Overruns
Article 291.
1. For any project or programme financed by a grant from the Fund, a financing agreement shall be drawn up between the Commission and the ACP State or States concerned within 60 days of the decision of the Community's decision-making body.
2. The agreement shall specify in particular the details of the Fund's financial commitment and the financing arrangements and terms, the general and specific provisions relating to the project or programme concerned and shall also incorporate the advance timetable for the technical implementation of the project or programme contained in the financing proposal.
3. Financing agreements for all projects and programmes shall make adequate provision for appropriations to cover cost increases and contingencies.
4. Once the financing agreement has been signed, disbursements shall be made in accordance with the financing plan laid down therein.
5. Any unexpended balance left upon closure of the accounts of projects and programmes 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 292. Cost Overruns
1. Once it appears that cost overruns beyond the limit set in the financing agreement are likely to be incurred, the national authorizing officer shall, through the delegate, notify the chief authorizing officer accordingly, as well as of the measures which the national authorizing officer intends to take in order to cover such cost overruns over the allocated appropriations, either by reducing the scale of the project or programme or by calling on national or other non-Community resources,
2. If it is decided by agreement with the Community not to scale down the project or programme or if it is not possible to cover them by other resources, then such overruns may be:
(a) covered by any unexpended balance left upon closure of projects and programmes from indicative programmes which has not been reallocated, up to 20 % of the financial commitment for the project or programme concerned; or
(b) financed by the indicative programme.
Article 293. Retroactive Financing
1. In order to ensure early project start-up, avoid gaps between sequential projects and prevent delays, the ACP States, in agreement with the Commission, may, on completion of project appraisal and before the financing decision is taken:
(i) issue invitations to tender for all types of contracts, with a suspension clause;
(ii) pre-finance, for a limited amount, activities linked to preliminary and seasonal work, orders for equipment with long delivery lead times as well as some ongoing operations. Such expenditures must satisfy the procedures provided for in the Convention.
2. These provisions do not prejudge the powers of the Community's decision-making body.
3. Expenditure made by the ACP State in pursuance of this Article shall be retroactively financed under the project or programme, once the financing agreement is signed.
Section 5. Competition and Preferences Eligibility
Article 294.
1. Save where a derogation is granted in accordance with Article 296:
(a) participation in invitations to tender and the award of the contracts financed by the Fund shall be open on equal terms to:
(i) natural persons, companies or firms or public or semi-public agencies of the ACP and Community States;
(ii) cooperative societies and other legal persons governed by public or private law, save for those which are non-profitmaking, of the Community and/or the ACP States;
(iii) joint ventures or groupings of ACP and/or Community companies or firms;
(b) supplies must originate in the Community and/or the ACP States, in accordance with the provisions of Annex LIV.
2. To be eligible to participate in invitations to tender and the award of contracts, tenderers shall provide evidence satisfactory to the ACP States of their eligibility under Article 274 and paragraph 1 of this Article, and adequacy of resources to carry out the contract effectively.
Article 295. Participation on Equal Terms
The ACP States and the Commission shall take the necessary measures to ensure the widest possible participation on equal terms in invitations to tender for works, supplies and services contracts, including, as appropriate, measures to:
(a) ensure publication of invitations to tender in the Official Journal of the European Communities, the official journals of all the ACP States and any other appropriate information media;
(b) eliminate discriminatory practices or technical specifications which might stand in the way of widespread participation on equal terms;
(c) encourage cooperation between the companies and firms of the Member States and of the ACP States;
(d) ensure that all the selection criteria are specified in the tender dossier; and
(e) ensure that the tender selected conforms to the requirements of the tender dossier and meets the selection criteria stated therein.