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Self-employed persons working for the contractor
According to section 2.4 (Subcontracting), the following shall not be considered subcontracting: d) Use of staff without employment contract (“self-employed persons working for the contractor”) to perform substantially the same tasks as the staff with employment contract (“employees”), without the tasks of the self-employed persons being particular well-defined parts of the contract. The persons mentioned in points d) above will be considered as “personnel” of the contractor as defined in the contract. On the other as stated in section 2.4 (‘Subcontracting') on pag. 8 and in Q&A 9, if the capacity of a subcontractor is necessary to fulfill any of the selection criteria, the latter qualifies as "identified subcontractor" and identified subcontractors have to provide for a commitment letter drawn up on the basis of Annex 5.2 Can you please clarify the followings: If a self-employed person working for the contractor is identified for covering the role of adult learning expert (Criterion B5), he/she has to be considered as a subcontractor or as “personnel” of the contractor as defined in the contract?
In order to provide a complete answer, we also refer to question-answer n°16. To fall under the exception to subcontracting mentioned in Section 2.4 §1 (d) of the tender specifications ('TS'), self-employed persons working for the contractor must meet the following cumulative conditions: - they perform substantially the same tasks as the employees; and - they are not going to perform tasks that will be particular well-defined parts of the contract. In casu, the self-employed person is relied upon to meet a selection criterion pertaining to technical and professional capacity, sub-section B ('Criteria relating to the team delivering the service'). These criteria serve to demonstrate the expertise and experience of the persons responsible for the performance of the contract. The roles mentioned therein can be considered important for the performance of the contract (see p40 and 44 of the TS). In addition, pursuant to the Financial Regulation 2018/1046, Annex 1, point 18.6, where a tenderer relies on the capacity of other entities to meet the selection criteria, the latter shall prove that it will have at its disposal the resources necessary to perform the contract by producing a commitment by those entities to that effect. As a result, the tasks performed by a person relied upon to meet any of the aforementioned selection criteria can be considered as particular well-defined parts of the contract. The exception to the qualification of such person as subcontractor is thus not applicable and the relevant commitment letters have to be provided.