6. An expert group of representatives of the Secretariat of the ACP Group of States and the Commission shall be set up to identify, at the request of one or other of the parties, any appropriate alterations and to suggest amendments and improvements to the rules and procedures referred to in paragraphs 1 and 2.
This expert group shall also submit a periodic report to the ACP-EC Development Finance Cooperation Committee to assist it in its task of examining the problems surrounding the implementation of development cooperation activities and proposing appropriate measures.
Article 20. Eligibility
Save where a derogation is granted in accordance with Article 22, and without prejudice to Article 26:
1. Participation in procedures for the awarding of procurement contracts or grants financed from the multi-annual financial framework of cooperation under this Agreement shall be open to:
(a) all natural persons who are nationals of, or legal persons who are established in, an ACP State, a Member State of the European Community, an official candidate country of the European Community or a Member State of the European Economic Area;
(b) all natural persons who are nationals of, or legal persons who are established in, a Least Developed Country as defined by the United Nations.
1a. Participation in procedures for the awarding of procurement contracts or grants financed from the multi-annual financial framework of cooperation under this Agreement shall be open to all natural persons who are nationals of, or legal persons established in, any country other than those referred to in paragraph 1, where reciprocal access to external assistance has been established. Reciprocal access in the Least Developed Countries as defined by the United Nations shall be automatically granted to the OECD/DAC members.
Reciprocal access shall be established by means of a specific Commission decision concerning a given country or a given regional group of countries. The decision shall be adopted by the Commission in agreement with the ACP States and shall be in force for a minimum period of one year.
2. Services under a contract financed from the multi-annual financial framework of cooperation under this Agreement may be provided by experts of any nationality, without prejudice to the qualitative and financial requirements set out in the Community's procurement rules.
3. Supplies and materials purchased under a contract financed from the multi-annual financial framework of cooperation under this Agreement must originate in a state that is eligible under paragraphs 1 or 1a. In this context, the definition of the concept of "originating products" shall be assessed by reference to the relevant international agreements, and supplies originating in the Community shall include supplies originating in the Overseas Countries and Territories.
4. Participation in procedures for the awarding of procurement contracts or grants financed from the multi-annual financial framework of cooperation under this Agreement shall be open to international organisations.
5. Whenever the multi-annual financial framework of cooperation under this Agreement finances an operation implemented through an international organisation, participation in procedures for the awarding of procurement contracts or grants shall be open to all natural and legal persons who are eligible under paragraphs 1 or 1a, and to all natural and legal persons who are eligible according to the rules of the organisation, care being taken to ensure equal treatment of all donors. The same rules apply for supplies and materials.
6. Whenever the multi-annual financial framework of cooperation under this Agreement finances an operation implemented as part of a regional initiative, participation in procedures for the awarding of procurement contracts or grants shall be open to all natural and legal persons who are eligible under paragraphs 1 or 1a, and to all natural and legal persons from a country participating in the relevant initiative. The same rules apply for supplies and materials,
7. Whenever the multi-annual financial framework of cooperation under this Agreement finances an operation co-financed with a third state, participation in procedures for the awarding of procurement contracts or grants shall be open to all natural and legal persons eligible under paragraphs 1 or 1a, and to all persons eligible under the rules of the above mentioned third state. The same rules apply for supplies and materials.
Article 21. Participation on Equal Terms
[Deleted]
Article 22. Derogations
1. In exceptional duly substantiated circumstances, natural or legal persons from third countries not eligible under Article 20 may be authorised to participate in procedures for the awarding of procurement contracts or grants financed by the Community from the multi-annual financial framework of cooperation under this Agreement at the justified request of the ACP State or the relevant organisation or body at regional or intra-ACP level. The ACP State or the relevant organisation or body at regional or intra-ACP level shall, on each occasion, provide the Commission with the information needed to decide on such derogation, with particular attention being given to:
(a) the geographical location of the ACP State or region concerned;
(b) the competitiveness of contractors, suppliers and consultants from the Member States and the ACP States;
(c) the need to avoid excessive increases in the cost of performance of the contract;
(d) transport difficulties or delays due to delivery times or other similar problems;
(e) technology that is the most appropriate and best suited to local conditions;
(f) cases of extreme urgency; (g) the availability of products and services in the relevant markets.
2. In the case of projects financed from the Investment Facility, the procurement rules of the Bank shall apply.
Article 23. Competition
[Deleted]
Article 24. Implementation by Direct Labour
1. In the case of direct labour operations, programmes and projects shall be implemented through public or semi-public agencies or departments of the ACP State or States concerned or by the legal person responsible for executing the operation.
2. The Community shall contribute to the costs of the department involved by providing the equipment and/or materials that it lacks and/or resources to allow it to acquire additional staff required in the form of experts from within the ACP States concerned or other ACP States. The Community's participation shall cover only costs incurred by supplementary measures and temporary expenditure relating to execution that are strictly confined to the requirements of the programmes and projects in question.
3. Programme estimates implementing direct-labour operations must comply with the Community rules, procedures and standard documents laid down by the Commission, as applicable at the time of approval of the programme estimates.
Article 25. Emergency Assistance Contracts
[Deleted]
Article 26. Preferences
1. Measures shall be taken to encourage the widest participation of the natural and legal persons of ACP States in the performance of contracts financed by the multi-annual financial framework of cooperation under this Agreement in order to permit the optimisation of the physical and human resources of those States. To this end:
(a) for works contracts of a value of less than EUR 5 000 000, tenderers of the ACP States, provided that at least one quarter of the capital stock and management staff originates from one or more ACP States, shall be accorded a 10 % price preference where tenders of an equivalent economic, technical and administrative quality are compared;
(b) for supply contracts, irrespective of the value of the supplies, tenderers of the ACP States who offer supplies of at least 50 % in contract value of ACP origin, shall be accorded a 15 % price preference where tenders of equivalent economic, technical and administrative quality are compared;
(c) in respect of service contracts, where tenders of equivalent economic and technical quality are compared, preference shall be given to:
(i) experts, institutions or consultancy companies or firms from ACP States with the required competence;
(ii) offers submitted by ACP firms, either individually or in a consortium with European partners; and
(iii) offers presented by European tenderers with ACP sub-contractors or experts;
(d) where subcontracting is envisaged, preference shall be given by the successful tenderer to natural persons, companies and firms of ACP States capable of performing the contract required on similar terms; and
(e) the ACP State may, in the invitation to tender, propose to the prospective tenderers the assistance of other ACP States' companies or firms or national experts or consultants selected by mutual agreement. This cooperation may take the form either of a joint venture, or of a subcontract or of on-the-job training of trainees.
2. Where two tenders are acknowledged to be equivalent on the basis of the cri- teria stated above, preference shall be given:
(a) to the tenderer of an ACP State; or
(b) if no such tender is forthcoming, to the tenderer who:
(i) allows for the best possible use of the physical and human resources of the ACP States;
(ii) offers the greatest subcontracting possibilities for ACP companies, firms or natural persons; or
(iii) is a consortium of natural persons, companies and firms from ACP States and the Community.
Article 27. Award of Contracts
[Deleted]
Article 28. General Regulations for Contracts
[Deleted]
Article 29. General Conditions for Contracts
[Deleted]
Article 30. Settlement of Disputes
Any dispute arising between the authorities of an ACP State or the relevant organisation or body at regional or intra-ACP level and a contractor, supplier or provider of services during the performance of a contract financed by the multi-annual financial framework of cooperation under this Agreement shall:
(a) in the case of a national contract, be settled in accordance with the national legislation of the ACP State concerned; and
(b) in the case of a transnational contract be settled either:
(i) if the Parties to the contract so agree, in accordance with the national legislation of the ACP State concerned or its established international practices; or
(ii) by arbitration in accordance with the procedural rules which will be adopted by decision of the Council of Ministers at the first meeting following the signing of this Agreement, upon the recommendation of the ACP-EC Development Finance Cooperation Committee.
Article 31. Tax and Customs Arrangements
1. The ACP States shall apply to contracts financed by the Community tax and customs arrangements no less favourable than those applied by them to the most favoured states or international development organisations with which they have relations. For the purpose of determining the most-favoured-nation (MFN) treatment, account shall not be taken of arrangements applied by the ACP State concerned to other ACP States, or to other developing countries.
2. Subject to the above provisions the following shall apply to contracts financed by the Community:
(a) the contract shall not be subject in the beneficiary ACP State to stamp or registration duties or to fiscal charges having equivalent effect, whether such charges already exist or are to be instituted in the future; however, such contracts shall be registered in accordance with the laws in force in the ACP State and a fee corresponding to the service rendered may be charged for it;
(b) profits and/or income arising from the performance of contracts shall be taxable according to the internal fiscal arrangements of the ACP State concerned, provided that the natural or legal persons who realise such profit and/or income have a permanent place of business in that state, or that the performance of the contract takes longer than six months;
(c) enterprises which must import professional equipment in order to carry out works contracts shall, if they so request, benefit from the system of temporary admission as laid down by the national legislation of the beneficiary ACP State in respect of the said equipment;
(d) professional equipment necessary for carrying out tasks defined in a service contract shall be temporarily admitted into the beneficiary ACP State or States in accordance with its national legislation free of fiscal, import and customs duties and of other charges having equivalent effect where these duties and charges do not constitute remuneration for services rendered;
(e) imports under supply contracts shall be admitted into the beneficiary ACP State without customs duties, import duties, taxes or fiscal charges having equivalent effect. The contract for supplies originating in the ACP State concerned shall be concluded on the basis of the ex-works price of the supplies to which may be added such internal fiscal charges as may be applicable to those supplies in the ACP State;
(f) fuels, lubricants and hydrocarbon binders and, in general, all materials used in the performance of works contracts shall be deemed to have been purchased on the local market and shall be subject to fiscal rules applicable under the national legislation in force in the beneficiary ACP State; and
(g) personal and household effects imported for use by natural persons, other than those recruited locally, engaged in carrying out tasks defined in a service contract and members of their families, shall be exempt from customs or import duties, taxes and other fiscal charges having equivalent effect, within the limit of the national legislation in force in the beneficiary ACP State.
3. Any matter not covered by the above provisions on tax and customs arrangements shall remain subject to the national legislation of the ACP State concerned.
Chapter 5. Monitoring and Evaluation
Article 32. Objectives
The objective of monitoring and evaluation shall consist in the regular assessment of development operations (preparation, implementation and subsequent operation) with a view to improving the development effectiveness of ongoing and future operations.
Article 33. Modalities
1. Without prejudice to evaluations carried out by the ACP State or the relevant organisation or body at regional or intra-ACP level or the Commission, this work will be done jointly by the ACP State(s) or the relevant organisation or body at regional or intra-ACP level and the Community. The ACP-EC Development Finance Cooperation Committee shall ensure the joint character of the joint monitoring and evaluation operations. In order to assist the ACP-EC Development Finance Cooperation Committee, the Commission and the ACP General Secretariat shall prepare and implement the joint monitoring and evaluations and report to the Committee. The Committee shall, at its first meeting after the signature of the Agreement, fix the operational modalities aimed at ensuring the joint character of the operations and shall, on a yearly basis, approve the work programme.
2. Monitoring and evaluation activities shall notably:
(a) provide regular and independent assessments of the operations and ac- tivities funded from the multi-annual financial framework of cooperation under this agreement by comparing results with objectives; and thereby
(b) enable the ACP States or the relevant organisation or body at regional or intra-ACP level and the Commission and the joint institutions, to feed the lessons of experience back into the design and execution of future policies and operations.
Chapter 6. Fund-resource Management and Executing Agents
Article 34. The Commission
1. The Commission shall undertake the financial execution of operations carried out with resources from the multi-annual financial framework of cooperation under this Agreement, with the exception of the Investment Facility and interest- rate subsidies, using the following main methods of management:
(a) centralised management;
(b) decentralised management.
2. As a general rule, the financial execution of the resources from the multi-annual financial framework of cooperation under this Agreement by the Commission shall be decentralised.
In this instance, the execution duties shall be carried out by the ACP States in accordance with Article 35.
3. In order to carry out the financial execution of the resources from the multi-annual financial framework of cooperation under this Agreement, the Commission shall delegate its executive powers within its own departments. The Commission shall inform the ACP States and the ACP-EC Development Finance Cooperation Committee of this delegation of tasks.
Article 35. National Authorising Officer
1. The Government of each ACP State shall appoint a National Authorising Officer to represent it in all operations financed from the resources from the multi-annual financial framework of cooperation under this Agreement managed by the Commission and the Bank. The National Authorising Officer shall appoint one or more deputy National Authorising Officers to replace him when he is unable to carry out his duties and shall inform the Commission of this appointment. Wher- ever the conditions regarding institutional capacity and sound financial management are met, the National Authorising Officer may delegate his functions for implementation of the programmes and projects concerned to the body responsible within the national administration. The National Authorising Officer shall inform the Commission of any such delegation.
In the case of regional programmes and projects, the relevant organisation or body shall designate a Regional Authorising Officer whose duties correspond, mutatis mutandis, to those of the National Authorising Officer.
In the case of Intra-ACP programmes and projects, the ACP Committee of Ambassadors shall designate an Intra-ACP Authorising Officer, whose duties correspond, mutatis mutandis, to those of the National Authorising Officer. In the event that the ACP Secretariat is not the Authorising Officer, the Committee of Ambassadors shall be informed in conformity with the financing agreement of the implementation of programmes and projects.
When the Commission becomes aware of problems in carrying out procedures relating to management of resources from the multi-annual financial framework of cooperation under this Agreement, it shall, in conjunction with the relevant Authorising Officer, make all contacts necessary to remedy the situation and take any appropriate steps.
The relevant Authorising Officer shall assume financial responsibility only for the executive tasks entrusted to him.
Where resources from the multi-annual financial framework of cooperation under this Agreement are managed in a decentralised way and subject to any additional powers that might be granted by the Commission, the relevant Authorising Officer shall:
(a) be responsible for the coordination, programming, regular monitoring and annual, mid-term and end-of-term reviews of implementation of cooperation, and for coordination with donors;
(b) in close cooperation with the Commission, be responsible for the preparation, submission and appraisal of programmes and projects;
(c) prepare tender dossiers and, where appropriate, the documents for calls for proposals;
(d) submit tender dossiers and, where appropriate, documents for calls for proposals, to the Commission for approval before launching invitations to tender and, where appropriate, calls for proposals;
(e) in close cooperation with the Commission, launch invitations to tender and, where appropriate, calls for proposals;
(f) receive tenders and, if applicable, proposals, and transmit copies of tenders to the Commission; preside over the opening of tenders and decide on the results of their examination within the period of validity of the tenders, taking account of the time required for approval of contracts;
(g) invite the Commission to the opening of tenders and, if applicable, proposals and notify the Commission of the results of the examination of tenders and proposals for approval of the proposals for the award of contracts and grants;
(h) submit contracts and programme estimates and any addenda thereto to the Commission for approval;
(i) sign the contracts and addenda thereto approved by the Commission;
(j) clear and authorise expenditure within the limits of the funds assigned to him; and
(k) during the execution operations, make any adaptation arrangements necessary to ensure the proper execution of approved programmes or projects from the economic and technical viewpoint.
2. The relevant Authorising Officer shall, during the execution of operations and subject to the requirement to inform the Commission, decide on:
(a) technical adjustments and alterations to programmes and projects in matters of detail so long as they do not affect the technical solution adopted and remain within the limits of the reserve for adjustments provided for in the financing agreement;
(b) changes of site for multiple-unit programmes or projects where justified on technical, economic or social grounds;
(c) imposition or remission of penalties for delay;
(d) acts discharging guarantors;
(e) purchase of goods, irrespective of their origin, on the local market;
(f) 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;
(g) subcontracting;
(h) final acceptance, provided that the Commission is present at provisional acceptance, endorses the corresponding minutes and, where appropriate, is present at the final acceptance, in particular where the extent of the reservations recorded at the provisional acceptance necessitates major additional work; and
(i) hiring of consultants and other technical assistance experts.
Article 36. Head of Delegation
1. The Commission shall be represented in each ACP State or in each regional grouping which expressly so requests, by a delegation under the authority of a Head of Delegation, with the approval of the ACP State or States concerned. Appropriate measures shall be taken in any case in which a Head of Delegation is appointed to a group of ACP States. The Head of Delegation shall represent the Commission in all spheres of its competence and in all its activities.
2. The Head of Delegation shall be the main contact for ACP States and bodies or organisations eligible for financial support under the Agreement. He shall cooperate and work in close cooperation with the National Authorising Officer.
3. The Head of Delegation shall have the necessary instructions and delegated powers to facilitate and expedite all operations under the Agreement.
4. On a regular basis, the Head of Delegation shall inform the national authorities of Community activities which may directly concern cooperation between the Community and the ACP States.
Article 37. Payments
1. For the purpose of effecting payments in the national currencies of the ACP States, accounts denominated in the currencies of the Members States or in euro may be opened in the ACP States by and in the name of the Commission with a national public or semi-public financial institution chosen by agreement be-tween the ACP State and the Commission. This institution shall exercise the functions of National Paying Agent.
2. The National Paying Agent shall receive no remuneration for its services and no interest shall be payable by it on deposited funds. The local accounts shall be replenished by the Commission in the currency of one of the Member States or in euro, based on estimates of future cash requirements, which shall be made sufficiently in advance to avoid the need for pre-financing by ACP States or the relevant organisation or body at regional or intra-ACP level and to prevent delayed disbursements.
3. [deleted]
4. Payments shall be made by the Commission in accordance with the rules laid down by the Community and the Commission, where appropriate after the ex- penditure has been cleared and authorised by the relevant Authorising Officer.
5. [deleted]
6. The procedures for clearance, authorisation and payment of expenditure must be completed within a period of 90 days from the date on which the payment becomes due. The relevant Authorising Officer shall process and deliver the pay- ment authorisation to the Head of Delegation not later than 45 days before the due date.
7. Claims for delayed payments shall be borne by the ACP State concerned or the relevant organisation or body at regional or intra-ACP level and by the Com- mission from its own resources, for that part of the delay for which each Party is responsible in accordance with the above procedures.
169
170 THE COTONOU AGREEMENT
ANNEX V
TRADE REGIME APPLICABLE DURING THE
PREPARATORY PERIOD REFERRED TO IN ARTICLE 37(1)
[Deleted]
THE COTONOU AGREEMENT
ANNEX VI
LIST OF THE LEAST DEVELOPED, LANDLOCKED AND ISLAND ACP STATES (LDLICS)
The lists comprise ACP least-developed, landlocked and Island States
Article 1. Least-developed Acp States
Under this Agreement, the following countries shall be considered least-devel-
oped ACP States:
Angola
Benin
Burkina Faso
Burundi
Central African Republic Chad
Comoro Islands Democratic Republic of Congo Djibouti
Eritrea