Call for tenders' details
Status
Submission date
26/10/2012
Answer date
30/10/2012
Language
Status
Answered
Question details
Subject
Article 3.1.3 of Annex A-II - Interpretation of the term "commercial relationship".
Question
There is no "de minimis" clause in the text of Article 3.1.3. The simple fact of recharging the audited organisation for incidental costs (e.g. recharging the cost of participating to a seminar organised by the contractor) over the three years preceding the audit and 12 months following it would also be forbidden because it would qualify as a "commercial relationship" or "services rendered". So, again, the term "commercial relationship" should be better defined. Could the European Commission confirm that such situations would NOT give rise to a conflict of interest and from what moment/level the Commission would consider that a commercial relationship would create the appearance of a conflict of interest situation?
Answer
30/10/2012
The term 'commercial relationship' in article 3.1.3 of the Working Practice (Annex A-II) must be interpreted in the context of the identification and elimination of potential conflicts of interest. Therefore, the term 'commercial relationship' does not normally encompass the situations where the contractors organise conferences, seminars or similar general events which are open to the public (irrespective of whether they are open only to clients or also to non-clients of the contractor). Payments/reimbursements made by the contractor towards the participants of such general events do not normally create a 'commercial relationship' in the meaning of article 3.1.3 of the Working Practice. It is the responsibility of the contractor, however, to check whether the specific existing situation or relation does not compromise the impartial and objective performance of the contract. Additionally, the Commission would like to draw the tenderers' attention to Article II.3.3 of the Framework Contract, according to which: "The Contractor declares: • that he has not made and will not make any offer of any type whatsoever from which an advantage can be derived under the Contract, • that he has not granted and will not grant, has not sought and will not seek, has not attempted and will not attempt to obtain, and has not accepted and will not accept, any advantage, financial or in kind, to or from any party whatsoever, where such advantage constitutes an illegal practice or involves corruption, either directly or indirectly, inasmuch as it is an incentive or reward relating to performance of the Contract."