LegalizeCommission Regulation (EC) No 2519/97 of 16 December 1997 laying down general rules for the mobilization of products to be supplied under Council Regulation (EC) No 1292/96 as Community food aid
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1292/96 of 27 June 1996 on food-aid policy and food-aid management and special operations in support of food security(1), and in particular Article 22 thereof,
Whereas in the light of experience it is appropriate to amend Commission Regulation (EEC) No 2200/87 of 8 July 1987 laying down general rules for the mobilization in the Community of products to be supplied as Community food aid(2), as amended by Regulation (EEC) No 790/91(3); whereas in the interests of clarity Regulation (EEC) No 2200/87 should be recast;
Whereas it is appropriate to reaffirm the importance of equal access for all to the supply operation; whereas an invitation to tender offers the same safeguards as a procedure for awarding contracts;
Whereas the mobilization of products from outside the Community should be placed within the framework of a Regulation; whereas in view of such inclusion, it is appropriate to indicate that, having regard to the specific obligations or even departures from normal commercial practices, no general reference is made to Incoterms;
Whereas it is appropriate to allow international and nongovernmental organizations which are themselves the beneficiaries of such aid to procure on the Community market or from outside the Community the products to be supplied as aid;
Whereas it is appropriate to allow an undertaking or body to be authorized to carry out all or part of a food aid operation;
Whereas it should be possible for the direct agreement contract procedure to be used in particular and justified circumstances;
Whereas it is necessary to provide that products to be delivered free at destination may, in some cases, only be transported overland in view of the new countries receiving food aid, in particular those of the Caucasus and Central Asia;
Whereas it may be appropriate for products to be supplied ex works or free carrier for some food aid beneficiaries;
Whereas the mobilization procedures should be as flexible as possible in order to cover all the situations to which Community food aid operations have to respond;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Food Aid and Food Security Committee,
HAS ADOPTED THIS REGULATION:
Where a decision has been taken to mobilize products for the purposes of a Community operation under Regulation (EC) No 1292/96, the procedures laid down in this Regulation shall apply.
This Regulation shall apply to goods to be supplied:
— ex works or free carrier, or
— free at port of shipment, or
— free at port of landing, or
— free at destination.
Where the purchases are effected in the recipient countries themselves, the Commission may adopt special provisions, to be laid down in the tender notice provided for in Article 6, to take account of the customs of the countries and their operators.
Participation in the tender procedures provided for under this Regulation shall be open on equal terms to any natural or legal person, hereinafter called ‘undertaking’,
— from the Community pursuant to Article 58 of the Treaty,
— from a Member State established in the case of an undertaking outside the Community, or a maritime company established outside the Community and controlled by nationals of a Member State if their vessels are registered in that Member State in accordance with its legislation,
— from a recipient country included in the list annexed to Regulation (EC) No 1292/96,
— from the country where the mobilization is carried out under the conditions set out in Articles 11 and 17 of Regulation (EC) No 1292/96.
The Commission may apply a temporary or permanent restriction on participation in the tender procedure by undertakings found to have committed a serious breach of any of their obligations in the execution of a food aid or other operation financed by the Community.
The Commission may authorize international and non-governmental organizations which are beneficiaries of Community aid to purchase and mobilize the products for use as aid supplies themselves. In that case the Commission shall determine the rules and procedures which shall apply.
The Commission may entrust the mobilization of all or part of the products to be supplied as Community aid to an undertaking or body authorized for the purpose. In this case the Commission shall determine the rules and procedures which shall apply.
The Commission shall determine the rules and procedures provided for in paragraphs 1 and 2 in accordance with the provisions envisaged by Article 22 of Regulation (EC) No 1292/96 and pursuant to the provisions of this Regulation.
Depending on the conditions laid down for a particular supply, the product to be supplied shall be purchased in the Community, the recipient country or a developing country listed in the Annex to Regulation (EC) No 1292/96, belonging if possible to the same geographical region, in accordance with the provisions of Article 11 of that Regulation.
In exceptional circumstances and in accordance with the procedures laid down in Article 11 (2) of Regulation (EC) No 1292/96, products may be purchased on the market of a country other than those referred to in paragraph (1).
Where products are mobilized in the Community, they may be purchased on the market from an intervention agency designated in the tender notice or be manufactured from goods purchased from such an agency. In the event of a purchase from an intervention agency, the purchase shall be effected on the basis of a fixed-price sale in accordance with current Community agricultural rules.
Where products are mobilized outside the Community, the Commission may indicate the country of origin of the products to be supplied under a particular operation.
The characteristics of the products to be mobilized and the requirements regarding packaging and marking shall be published in the C series of the Official Journal of the European Communities, without prejudice to any special provisions which may be adopted by the Commission, and indicated in the tender notice.
Supply contracts shall be awarded in one of the following ways:
(a) open invitation to tender;
(b) restricted invitation to tender;
(c) direct agreement contract.
In the case of an open invitation to tender, a tender notice conforming to Annex I shall be published in the Official Journal of the European Communities no later than 15 days before the expiry of the period for the submission of the tenders.
In the case of a restricted invitation to tender, a tender notice shall be forwarded to at least three undertakings by letter or written telecommunication.
Where products are mobilized in the Community, the undertakings invited shall be selected from those who have participated in the invitations to tender referred to in paragraph 2.
Where products are mobilized outside the Community, the undertakings invited shall be those registered for this purpose with the Commission.
A restricted invitation to tender may be issued in the following cases:
(a) where products are mobilized outside the Community;
(b) where products are supplied under an allocation decision taken pursuant to Article 24 (1) (a) of Regulation (EC) No 1292/96;
(c) where a supply operation is decided following the cancellation of a previous supply contract;
(d) where a supply operation has become urgent following the allocation decision.
In the case of a direct agreement contract, only one undertaking shall be invited to tender.
A direct agreement contract may be undertaken where warranted by the particular conditions of a supply and, in particular, in the case of an experimental supply.
The invitation to tender may relate to the supply of a fixed quantity or a maximum quantity of products for a specific monetary amount.
One single invitation to tender may relate to the supply of more than one lot. A lot may be subdivided into part lots or cover more than one action number.
Tenderers shall participate in the tendering procedure either by sending a written tender by registered post to the Commission department indicated in the tender notice or by lodging the written tender with that department against acknowledgment of receipt. Tenders must be placed in an envelope bearing the words ‘food aid’ and the reference number of the relevant invitation to tender. The envelope must be sealed and placed inside a second envelope bearing the address indicated in the tender notice.
Tenders may also be sent by written telecommunication to the numbers indicated in the tender notice. The fact that the numbers were engaged shall not be accepted as an excuse for failure to meet the deadline for submission of tenders.
Tenders must arrive or be lodged in their entirety before expiry of the deadline for submission of tenders laid down in the tender notice.
One single tender may be submitted for each lot. It shall be valid only if it relates to a complete lot. Where a lot is subdivided into part: lots, the tender shall be established as an average thereof.
Where the invitation to tender relates to the supply of more than one lot, a separate tender shall be submitted per lot. The tenderer is not obliged to present a tender for all the lots.
Tenders shall conform to the model in Annex IIA and shall take account of the particulars given in Annex IIB.
Tenders must indicate:
(a) the tenderer's name and address;
(b) the reference numbers of the invitation to tender, lot and action;
(c) the net weight of the lot or, pursuant to point (e), the specific monetary amount to which the tender relates;
(d) the proposed price in ecus per net metric tonne of product at which the tenderer undertakes to carry out the supply in accordance with the conditions laid down, except where paragraph (e) applies;
(e) where the invitation to tender is for a contract to supply a maximum quantity of a given product for a specific monetary amount, the net quantity of products offered.
The tender shall be deemed to take account both of the mobilization procedure referred to in Article 4 as laid down for the supply concerned, and of the refund or charge applicable on export and other compensatory amounts provided for in the rules governing trade in agricultural products.
The invitation to tender may provide that the tender must include these refunds or other amounts;
The provisions of the second and third subparagraphs shall apply mutatis mutandis where the provisions of point (e) are applied.
Without prejudice to paragraph 3, in the case of delivery ex works or free at destination overland only, the tender shall indicate a maximum of two loading addresses. In the case of delivery free carrier, the loading address shall be indicated in the tender notice; the Commission will only proceed to this stage of delivery in special circumstances duly motivated.
Without prejudice to paragraph 3, in the case of delivery free at port of landing or free at destination by sea, the tender shall indicate one single port of shipment. However, two ports may be indicated in the tender if the whole cargo cannot be loaded in the first port by virtue of that port's configuration and loading has to be completed on the same vessel in the second port.
Without prejudice to paragraph 3, in the case of delivery free at port of shipment, the tender shall indicate one single port accessible to ocean-going vessels where the supply can be undertaken under the conditions laid down. However, two ports may be indicated in the tender if the lot is subdivided into part lots with different destinations.
In the case of supplies involving no more than 3 000 tonnes net per lot for a single destination, the port of loading shall be selected, having regard to the possibility of a sea connection with the country of destination, with a maximum of one transshipment in a port outside the Community, by a liner or part cargo vessel during the shipment period laid down. In this case, the tender shall be valid only if it is accompanied by a confirmation from a shipping company or its agent of the existence of such a connection.
In the case of the supply of processed products, including rice, mobilized in the Community, the sea transport may include one transshipment in another European port of the Community under the conditions laid down above; that port must also be indicated in the tender. The transshipment costs shall be borne by the supplier.
In special circumstances the port of shipment may be specified in the tender notice.
Where point (d) of paragraph 3 applies, the tender shall be presented as follows:
(a) in the case of delivery ex works or free carrier, the tenderer shall submit a single tender covering the full cost of loading and stowing the goods on the means of transport provided by the beneficiary;
(b) in the case of delivery free at port of shipment, the tenderer shall submit a single tender covering all costs relating to the stage of delivery specified in the tender notice;
Where point (e) of paragraph 3 applies, the tender notice shall specify the manner of presentation of the tender.
The tender shall be valid only if it is accompanied by evidence that the guarantee referred to in Article 8 has been lodged. The guarantee shall be provided under the conditions set out in paragraph 1 of the present Article. The mere reference to a guarantee lodged for the same lot in a previous tender shall be inadmissible.
A tender which is not submitted in accordance with the provisions of this Article or contains reservations or conditions other than those laid down for the invitation to tender shall not be valid.
No tender may be changed or withdrawn after it has been received, except in the case referred to in Article 9(4).
A tendering guarantee, expressed in ecus, shall be lodged for each complete lot. The amount of the guarantee shall be laid down in the tender notice. The period of validity shall be at least one month and shall be extended on request by the Commission. The guarantee must specifically state that it has been lodged in accordance with this Article and must include the particulars referred to in points (a) and (b) of Article 7 (3). A single document may include guarantees for more than one lot provided the individual amounts are specified by lot.
The guarantee shall be lodged in favour of the Commission in the form of a security from a credit establishment recognized by a Member State. Where products are mobilized outside the Community, the guarantee may be lodged by a credit establishment located outside the Community provided it is accepted by the Commission. The guarantee shall be irrevocable and capable of being called at first request. The guarantee may be released only on the initiative of the Commission. The conditions for its release or forfeiture are set out in Article 22. No acknowledgment of receipt shall be given.
In case of mobilization in the country which is itself the beneficiary of the food aid, the Commission may define in the tender notice other conditions for the guarantee taking account of the customs of the country.
The award shall be made no later than three working days for purchases in the Community and four working days for purchases outside the Community from the expiry of the deadline for the submission of tenders to the tenderer who submitted the lowest tender respecting all the conditions of the invitation to tender, in particular the characteristics of the products to be mobilized, hereinafter referred to as ‘the supplier’.
Where the lowest tender is presented simultaneously by a number of tenderers, the contract shall be awarded by the drawing of lots.
In the case of supply foreseen free at port of landing or free at destination, the contract may nevertheless be awarded for a supply to be carried out at the alternative stage of delivery free at port of shipment or ex works specified in the tender notice.
When the contract is awarded, both the supplier and the unsuccessful tenderers shall be duly notified by letter or written telecommunication within the period referred to in paragraph 1. If the supplier is notified after this period has expired, he shall have the right to withdraw his tender within the first working day following.
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