Call for tenders' details

External and Internet Connectivity Services
Contracting authority:
European Commission, DG Informatics (DIGIT)
TED publication date:
Time limit for receipt of tenders:
English (en)
Question details
Would it be possible to stipulate precisely in the “Commitment letter by identified subcontractor” (Annex 5.1 to the Tender Specifications) that a subcontractor needs to comply with the clauses of the FWC (the Framework Contract of the EC) which are solely applicable to the subcontractor (e.g., articles II.8, II.9, II.22 and II.23)? The Commitment letter, as it is worded now, is not clear enough on which clauses are applicable to the subcontractor: the letter mentions “the terms of the contract”, “general conditions…, in particular the contractual provisions related to checks and audits”. “The terms of the contract” are not specified. Would that be the FWC? If so, the FWC must be entered into by the EC and the contractor (not by the subcontractor). It is not stipulated that the subcontractor shall be deemed the contractor to correctly interpret the FWC for the subcontractor. Therefore, the FWC cannot be applicable to the subcontractor, at least not in its entirety. The Commitment letter further explicitly refers to clauses, like check and audit. This reference is in accordance with clause I.22.6 of the FWC. This clause refers just to a few clauses which are applicable to the subcontractor but the intention of the Framework Agreement is that the contractor (not its subcontractor) is bound by the FWC and solely responsible for the implementation of the FWC (also in case of subcontracting). The 2nd par. if clause I.22.6 explicitly names clauses II.8, II.9, II.22 and II.23 as applicable to the subcontractor. It is also logical because many clause from the FWC would not be applicable to the subcontractor (e-Ordering, communication / governance clause, etc.).
Subcontracting is the situation where the contractor enters into legal commitments with other economic operators that will perform part of the contract on its behalf. The contracting authority does not have any contractual relationship with the subcontractors. The contractor retains full liability towards the contracting authority for performance of the contract as a whole. It is the contractor’s responsibility to make the necessary arrangements with its subcontractors to ensure that all the applicable terms and conditions of the procurement documents (e.g. tender specifications and annexes, draft framework contract and annexes) will be respected by the subcontractors, taking into account the parts of the contract that the subcontractors will assist the contractor to perform. The commitment letter template merely reflects the acceptance of this approach and does not need to be stipulated further. Please also refer to the provisions on subcontracting in the draft framework contract.