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BỘ
NGOẠI GIAO
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CỘNG
HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM
Độc lập - Tự do - Hạnh phúc
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Số:
05/2022/TB-LPQT
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Hà
Nội, ngày 25 tháng 02 năm 2022
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THÔNG
BÁO
VỀ VIỆC ĐIỀU ƯỚC QUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định tại Điều 56 của Luật Điều ước quốc tế năm 2016, Bộ Ngoại giao trân
trọng thông báo:
Hiệp định tài chính giữa
Chính phủ nước Cộng hòa xã hội chủ nghĩa Việt Nam và Liên minh Châu Âu cho “Chương
trình Tăng cường quản trị kinh tế tại Việt Nam sử dụng viện không hoàn lại của
Liên minh Châu Âu”, ký tại Hà Nội ngày 08 tháng 02 năm 2022, có hiệu lực ngày
08 tháng 02 năm 2022.
Bộ Ngoại giao trân trọng gửi
bản sao Hiệp định theo quy định tại Điều 59 của Luật nêu
trên./.
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TL.
BỘ TRƯỞNG
VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
Lê Đức Hạnh
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Financing Agreement
ACA/2020/042-250
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FINANCING
AGREEMENT BETWEEN THE SOCIALIST REPUBLIC OF VIET NAM AND THE EUROPEAN UNION
“EU - Viet Nam Enhancing Economic Governance Programme”
FINANCING AGREEMENT
SPECIAL
CONDITIONS
The Government of the
Socialist Republic of Viet Nam, hereinafter referred to as "the
Partner", represented by the Ministry of Planning and Investment,
of the one part, and
The European Commission,
hereinafter referred to as "the Commission", acting on behalf
of the European Union, hereinafter referred to as "the EU",
of the other part,
have agreed as follows:
Article
1 - Nature of the action
1.1. The EU agrees to
finance and the Partner agrees to accept the financing of the following action:
EU - Viet Nam Enhancing
Economic Governance Programme
Decision number:
ACA/2020/042-250
This action is financed from
the EU Budget under the following basic act: Instrument for Development
Cooperation
1.2. The total estimated
cost of this action is EUR 20 000 000 and the maximum EU contribution to this
action is set at EUR 18 000 000.
1.3. The Partner shall not
co-finance the action.
The action is co-financed in
joint co-financing by the Government of Germany. The breakdown of this
financial contribution is shown in Annex I (Technical and Administrative
Provisions).
Article
2 - Execution period
2.1. The execution period of
this Financing Agreement as defined in Article 15 of Annex II (General
Conditions) shall commence on the entry into force of this Financing Agreement
and end 90 months after this date.
2.2. The duration of the
operational implementation period is fixed at 66 months.
2.3. The duration of the
closure period is fixed at 24 months.
Article
3 - Addresses
All communications
concerning the implementation of this Financing Agreement shall be in writing,
shall refer expressly to this action as identified in Article 1.1 of these
Special Conditions and shall be sent to the following addresses:
a) for the Commission
The Delegation of the
European Union to Viet Nam
24th Floor, West
Wing, Lotte Center
54 Lieu Giai Street
Ha Noi, Viet Nam
b) for the Partner
Ministry of Planning and
Investment
6B Hoang Dieu, Quan Thanh,
Ba Dinh
Ha Noi, Viet Nam
Article
4 - OLAF contact point
The contact point of the
Partner having the appropriate powers to cooperate directly with the European
Anti-Fraud Office (OLAF) in order to facilitate OLAF’s operational activities
shall be:
Government Inspectorate
Address: D29 Lot Tran Thai
Tong, Yen Hoa, Cau Giay, Ha Noi
Email: ttcp@thanhtra.gov.vn
Article
5 - Annexes
5.1. This Financing
Agreement is composed of:
(a) these Special
Conditions;
(b) Annex I: Technical and
Administrative Provisions, detailing the objectives, expected results,
activities, description of the budget-implementation tasks entrusted and budget
of this Action;
(c) Annex II: General
Conditions;
5.2. In the event of a
conflict between, on the one hand, the provisions of the Annexes and, on the
other hand, the provisions of these Special Conditions, the latter shall take
precedence. In the event of a conflict between, on the one hand, the provisions
of Annex I (Technical and Administrative Provisions) and, on the other hand,
the provisions of Annex II (General Conditions), the latter shall take
precedence.
Article
6 - Provisions derogating from or supplementing Annex II (General Conditions)
6.1 Articles 18, 19, 25.3,
25.4 and 25.5 of Annex II (General Conditions) do not apply to those activities
entrusted to an entity pursuant to Annex I under this Financing Agreement.
6.2 Article 24 of Annex II
(General Conditions) is supplemented as follows:
i) Before exercising the
right to suspend and terminate the Agreement as foreseen in Articles 26 and
27.1 of Annex II (General Conditions), either Party shall notify the other
Party of its intention and consultation shall take place, on the basis of
mutual respect and partnership.
ii) Upon the receipt of the
notification, the notified Party shall provide observations within 15 working
days.
6.3 Article 26.2 of Annex
II (General Conditions) is not applicable to this Financing Agreement.
Article
7 - Entry into force
This Financing Agreement
shall enter into force on the date on which it is signed by the last party.
Done in 4 original copies in
the English language, 2 copies being handed to the Commission and 2 to the
Partner.
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For the Partner:
Tran Quoc Phuong
Deputy Minister
Ministry of Planning and Investment
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For the Commission:
Jean-Louis Ville
Acting Director for Middle
East, Asia and Pacific
Directorate General for
International Partnerships
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Signature:
Date: 08.02.2022
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Signature:
Date: 10.12.2021
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ANNEX I TO FINANCING AGREEMENT NO. ACA/2020/042-250
TECHNICAL AND ADMINISTRATIVE PROVISIONS
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This document constitutes
the annual work programme in the sense of Article 110(2) of the Financial
Regulation and measure in the sense of Articles 2 and 3 of Regulation N°
236/2014.
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1.
SYNOPSIS
1.1. Action Summary Table
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1. Title
CRIS reference
Basic Act
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EU - Viet Nam Enhancing
Economic Governance Programme
CRIS number
ACA/2020/042-250
Financed under the
Development Cooperation Instrument
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2. Team Europe Initiative
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No
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3. Zone benefiting from
the action
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The action shall be
carried out in Viet Nam
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4. Programming document
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Addendum N°1 to the
Multiannual Indicative Programme (MIP) for Viet Nam 2014-2020 - C(2018)4741
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5. Link with relevant MIP
objectives / expected results
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Specific Objective 2.2:
The government’s ability for accountable, transparent and cost-effective
service delivery is enhanced
Specific Objective 2.3:
The citizen’s effective participation in public governance is strengthened
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PRIORITY
AREAS AND SECTOR INFORMATION
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6. Priority Area(s),
sectors
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MIP Priority Area:
Governance and Rule of Law
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7. Sustainable Development
Goals (SDGs)
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Main SDG: 17
Other significant SDGs: 5,
8, 16
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8 a) DAC code(s)
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15111- Public finance
management (PFM) (48%)
15114 - Domestic revenue
mobilisation (24%)
15125 - Public Procurement
(11%)
15142 - Macroeconomic
policy (17%)
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8 b) Main Delivery Channel
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13000 - Third Country
Government: GIZ
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9. Targets
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□ Migration
□ Climate
□ Social inclusion and
Human Development
□ Gender
□ Biodiversity
□ Education
S Governance
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10. Markers (from DAC
form)
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General policy objective
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Not
targeted
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Significant
objective
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Principal
objective
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Participation
development/good governance
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□
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□
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S
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Aid to environment
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S
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□
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□
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Gender equality and
Women’s and Girlʼs Empowerment
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□
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S
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□
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Trade Development
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□
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S
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□
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Reproductive, Maternal,
New born and child health
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S
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□
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□
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Disaster Risk Reduction
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S
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□
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□
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Inclusion of persons with
disabilities
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S
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□
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□
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Nutrition
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S
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□
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□
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RIO Convention markers
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Not
targeted
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Significant
objective
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Principal
objective
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Biological diversity
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S
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□
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□
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Combat desertification
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S
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□
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□
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Climate change mitigation
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S
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□
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□
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Climate change adaptation
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S
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□
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□
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11. Internal markers and
Tags
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Policy objectives
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Not
targeted
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Significant
objective
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Principal
objective
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Digitalisation
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□
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S
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□
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Tags:
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digital connectivity
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□
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□
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|
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digital governance
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S
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□
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|
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digital entrepreneurship
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□
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□
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job creation
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□
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□
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digital skills/literacy
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□
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□
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digital services
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□
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□
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Connectivity
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S
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□
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□
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Tags:
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transport
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□
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□
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people2people
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□
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□
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energy
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□
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□
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digital connectivity
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□
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□
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Migration
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S
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Reduction of Inequalities
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S
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□
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□
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COVID-19
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□
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S
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□
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BUDGET
INFORMATION
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12. Amounts concerned
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Budget line: 21.020200
Total estimated cost: EUR
20 000 000
Total amount of EU budget
contribution: EUR 18 000 000
This action is co-financed
in joint co-financing by the Government of Germany for an amount of EUR 2 000
000
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MANAGEMENT
AND IMPLEMENTATION
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13. Type of financing
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Direct management through
Procurement
Indirect
management with the Deutsche Gesellschaft für
Internationale Zusammenarbeit (GIZ)
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1.2. Summary of the Action
Since the launch of ‘Đổi Mới’
in 1986, Viet Nam has achieved significant economic and social progress. Today,
it is one of the most open economies in the world (by trade-to-GDP ratio) and
has enjoyed robust growth, one of the strongest among South East Asian
countries. Viet Nam’s openness to trade and divestment and its recent success
in improving its fiscal situation have put it in a good position to benefit
from the current changes in trade and investment patterns in the region that
work in Viet Nam’s favour.
Despite great achievement,
challenges to its future and sustainable economic growth are numerous and
becoming more and more complex. Facing a fast ageing society, increasing trade
tension, rapid changes in global production networks through trade and digitalisation
as well as increasing pollution and climate change, Viet Nam needs to upgrade
its capabilities to ensure sustainable and inclusive development. Institutional
legacies and incomplete market economy have become impediments to productivity
growth, especially for the private sector. Viet Nam continues to leverage
commitments under various free trade agreements (FTAs) including with the
European Union (EVFTA). While this presents opportunities for Viet Nam to tap
into major international markets and climb up in global value chains, much
needs to be done by the Partner in terms of reforming institutional framework
and strengthening domestic capacity.
The public financial
management system, though being gradually modernized, still need to be further upgraded
to ensure efficient and effective financing for development. Domestic resource
mobilization is currently below its potential and tax policy reform has great
potential for improvement. Fiscal consolidation measures over past years have
contained the public debt, however public debt management system needs to be
upgraded.
The Action was designed to
provide the Partner with technical assistance to strengthen its (i) planning
management, (ii) doing business environment, (iii) public financial management
including budget planning and implementation, public debt management, tax
policy and administration, public investment and
public procurement. By doing so, the action is expected to improve the quality
of economic governance, thus contribute to sustainable development and
inclusive growth in Viet Nam.
While this action is not
part of the COVID-19 response package for Viet Nam it will be implemented in
times of the COVID-19 pandemic and will provide timely support to the country’s
recovery process. The Action will be adapted to the situation as necessary to
ensure its success. Besides, good economic governance is even more crucial in
challenging times and the programme can help establish good practices for a
“new normal”.
2. DESCRIPTION
OF THE ACTION
2.1. Objectives and Expected
Outputs
The Overall Objective
(Impact) of this action is to contribute to sustainable development and
inclusive growth in Viet Nam by strengthening economic governance.
The Specific Objectives
(Outcomes) of this action are:
1. Doing business
environment is improved
2. Planning management is
strengthened
3. Public investment
management is improved
4. Public procurement system
is strengthened
5. State budget management
and revenue forecasting is improved
6. Management of public debt
is enhanced
7. Tax environment and
revenue mobilization is enhanced
The Outputs to be delivered
by this action contributing to the corresponding Specific Objectives (Outcomes)
are:
contributing to Outcome 1
(or Specific Objective 1):
1.1 Methodology and technical
tools to evaluate business performance and predict business development trend
are developed
1.2 Databases on businesses
are developed, updated and integrated to support business performance
assessment and prediction of business development trend
1.3 Reporting system for
the assessment of business performance and prediction of business development
trend is developed
1.4 Policy framework to
support private sector development, transparency and fair competition is
enhanced
contributing to Outcome 2
(or Specific Objective 2):
2.1 Legal framework and
analytical work for planning management is further developed supporting the
implementation of the Law on Planning
2.2 Staff capacity is
strengthened
2.3 Transparency in
planning management is enhanced through application of information technology
contributing to Outcome 3
(or Specific Objective 3):
3.1 Legal and regulatory
framework governing public investment is strengthened
3.2 The capacity and
interoperation of information systems and databases on public investments are
improved
3.3 Transparency of public
investment is improved through application of information technology
3.4 Staff capacity is
strengthened
contributing to Outcome 4
(or Specific Objective 4):
4.1 Legal and regulatory
framework governing public procurement is strengthened
4.2 Guidance on
implementation of the Partner’s public procurement commitments in the EVFTA is
developed
4.3 Capacity of relevant
bodies of the Partner is enhanced to enable effective and efficient management
of public investment and implementation of EVFTA commitments
4.4 Participation of local
enterprises into the EU’s public procurement is promoted
4.5 Participation of EU
companies into Viet Nam’s public procurement is promoted
contributing to Outcome 5
(or Specific Objective 5):
5.1 Assessment of the
implementation of the State Budget Law 2015 in the past 5 years is conducted
5.2 Legal and regulatory
framework is strengthened
5.3 Guidance, methodologies
and technical tools for macro-fiscal-revenue forecasting are further developed
5.4 Staff capacity is
enhanced
5.5 Citizens have improved
knowledge and access to budget information
5.6 Information system is
enhanced to enable better disclosure of budget information
contributing to Outcome 6
(or Specific Objective 6):
6.1 International standards
are reviewed and necessary inputs are collected to develop public debt
management strategy
6.2 Legal and regulatory
frameworK is modernized and roles and responsibilities of relevant bodies are
further clarified.
6.3 Detailed guidance are
developed to support implementation
6.4 Staff capacity is
strengthened
contributing to Outcome 7
(or Specific Objective 7)
7.1 International standards
are reviewed and necessary inputs are collected to develop tax management strategy
7.2 Legal and regulatory
framework is modernized, roles and responsibilities of relevant bodies are
clarified
7.3 Organizational
development is supported and guidance are developed
7.4 Staff capacity is
strengthened
2.2. Indicative Activities
Activities related to Output
1.1:
- Review current methodology
and technical tools, including relevant international practices, used to assess
and monitor performance of business and predict business development trend;
- Develop methodology and
technical tools to evaluate business performance, including business credit
score;
- Support piloting of newly
developed technical tools to assess business performance in some sectors/provinces;
- Advise the application of
technical tools to assess business performance in selected sectors.
Activities related to Output
1.2:
- Review and assess current
databases on businesses managed by ministries as a basis to develop
methodology, criteria and indexes to measure business performance and predict
business development trend;
- Assess current information
infrastructure and suggest solutions to improve the connectivity and
integration of existing databases on businesses to enable efficient assessment
of business performance and prediction of business development trend;
- Study good practices and
provide recommendations to improve rules and regulations necessary to improve
system connectivity and sharing databases on businesses across, ministries and
Partner bodies;
- Provide trainings to
improve staff capacity on management and use of databases on businesses. Activities
related to Output 1.3:
- Develop reporting
templates for the assessment of business performance and prediction of business
development trend;
- Support to conduct
business surveys in selected industrial sectors;
- Advise and support the
dissemination of report on business performance and business development trend.
Activities related to Output
1.4:
- Assess the implementation
of policies on business development and provide recommendations to enable
sustainable development of private sector;
- Review the consistency
between regulations on state own enterprises and those on private sector;
- Provide policy
recommendations to improve the transparency and fair competition among business
sectors.
Activities related to Output
2.1:
- Review current legal
framework on planning; provide international experiences and support the
revision and development of guiding documents for the implementation of the Law
on Planning and related legislation;
- Review the current system
and practices; support the automation of procedures and processes in the
national information system on planning; advise on the technical requirements,
functions and database for the establishment and functioning of the National
information system and database on planning;
- Support consultations with
relevant ministries and bodies.
Activities related to Output
2.2:
- Develop training materials
for the training of officers at central and provincial levels;
- Organize trainings on regulatory
framework, information system and databases.
Activities related to Output
2.3:
- Collect data and
information relevant for planning; review and assess the adequacy of data and
information collected as necessary for the establishment of national database
on planning;
- Design and develop model
and framework for national database on planning with the view to have
interconnection and interoperation between sectors, ministries and provinces.
Develop processes for the transfer, standardization and integration of data
into the national database on planning and national information system on
planning;
- Develop methodology for:
(i) management and connection of national database on planning in accordance
with Article 41.1 and 41.2 of the Law on Planning, develop data fields on
planning; (ii) provision of information on planning to relevant bodies and
individuals, division of roles and segregation of duties in using information
system and databases in accordance with Article 42 of the Law on Planning;
(iii) Sharing and receiving of data and information on planning in the national
information system, on planning; (iv) achieving planning dossiers; (v) updating
during the management and implementation of planning;
- Analyze, design and
develop a national information system on planning which is consistent with the
overarching E-government system and MPI e-government
system in particular, ensure the centralization of the system and the
consistency with the national standards, and enable the publication, searching
and sharing of information on planning as well as receiving feedbacks from
relevant bodies;
- Support the installation
and testing of the information system;
- Support the implementation
of the national information system on planning at the central and provincial
level.
Activities related to Output
3.1:
- Review the consistency
between the public investment regulatory framework and other legislation to
identify the inconsistency and bottlenecks and recommendation for improvement;
- Support the development/revision
of legal and guiding documents and to address the conflicts and inconsistencies
between laws and regulations on public investment,
- Assess training need of
MPI and relevant bodies to support building capacity on public investment;
- Provide trainings to
relevant officers on public investment regulatory framework and practices;
- Analyses IMF’s
recommendations on public investment and support MPI to implement relevant
recommendations;
- Advise on a process for
horizontal and vertical coordination between ministries and provinces in
planning, appraisal and approval of annual and medium-term public investment
plan;
- Support the review and
assessment the implementation of public investment law;
- Support the development of
new guidance to ensure consistent implementation of the Public Investment Law;
- Support consultations with
relevant ministries and bodies
Activities related to Output
3.2:
- Review the current system
and recommend fundamental functions of the system to ensure it can meet the
requirements of the current law and legislation;
- Review and assess capacity
of the current system and recommend to improve the system’s capacity and
security;
- Support to improve
application capacity to implement new processes;
- Support to improve the
database on public investment projects;
- Study MOF’s system for
budget management, assess the possibility to connect MPI's system and MOF’s
system, provide solutions and support the connection process.
Activities related to Output
3.3:
- Review the current legal
framework on transparency of public investment and actual implementation;
- Advise on the application
of information technology to improve disclosure of information and transparency
in public investment management.
Activities related to Output
3.4:
- Conduct training need
assessment;
- Develop training materials
and training plan;
- Provide trainings to
trainers, support rolling out of general and thematic trainings to different
group of trainees at central and provincial level.
Activities related to Output
4.1:
- Review the implementation
of Public Procurement Law no. 43/2013/QH13 to identify shortcomings;
- Develop regulations on
central tendering, procurement of innovative/high-tech products, green
procurement, procurement of domestically produced products replacing imported
products, procurement from vulnerable groups etc.;
- Develop methodology and criteria
for the selection of contractor for PPP projects;
- Develop methodology and criteria
for the selection of contractor for non-PPP projects in different
sectors (health, education, social, environmental, energy etc.);
- Develop e-catalogue in
line with international practices;
- Study international experiences
in implementation of FTA commitments in public procurement, including FTAs of
which the EU is a party.
Activities related to Output
4.2:
- Develop guiding document
the implementation of EVFTA commitments in public procurement, support the
implementation process;
- Develop more detailed
handbook guiding the implementation of commitments.
Activities related to Output
4.3:
- Disseminate information
and provide trainings on public procurement regulations, EVFTA commitments and
e-procurement system;
- Advise on solution to
provide information and timely address questions on public procurements and
respective commitments in the EVFTA;
- Assess the implementation
of public procurement and respective EVFTA commitments.
Activities related to Output
4.4:
- Provide in-depth analysis
of the EU’s legal framework and requirements regarding public procurement;
- Assessment of potential
for participation of local enterprises into EU’s public procurement market
- Dissemination of
information to local enterprises.
Activities related to Output
4.5:
- Develop handbook on public
procurement in Viet Nam;
- Study good practices and
solutions to improve efficiency and effectiveness of public procurement in Viet
Nam, particularly in the context of EVFTA and similar commitments.
Activities related to Output
5.1:
- Assess the development and
implementation of State Budget Law and its guiding documents
- Assess the management of
state budget in relation with public debt management, public investment;
- Conduct other reviews
related to the assessment of State Budget Law implementation;
- Analyse technical requirements
and availability of data necessary for macro-economic and revenue forecasting;
- Study good practices and
initiatives in public financial management.
Activities related to Output
5.2:
- Review and propose for
amendment of the State Budget Law (if necessary) and its guiding documents.
Activities related to Output
5.3:
- Review and develop
guidance to support implementation of the State Budget Law;
- Support to develop
macro-economic and revenue forecasting models.
Activities related to Output
5.4:
- Organize trainings and
workshop to discuss local and international experiences;
- Provide updated training
to ensure effective implementation of the State Budget Law.
Activities related to Output
5.5:
- Support ministries and
provinces to prepare citizen budget document to facilitate citizen’s understanding
and attract public interest in state budget matters, thereby increase citizen
participation in budget management process.
Activities related to Output
5.6:
- Support ministries and
provinces to establish and run a dedicated section for disclosure of budget
documents on their website in a more consistent and structured way; and to
connect them with :MOF’s portal to improve the availability, timeliness and
accessibility of budget information and enable more efficient oversight of
state budget by citizens.
Activities related to Output
6.1:
- Assess the public debt
mobilization during 2011 -2020 period and provide policy recommendations for
public debt mobilization in the next period;
- Advise on the development
of public debt strategy, public debt mobilization and repayment plan on
medium-term perspective;
- Provide technical
assistance based on international experience on management of public debt
portfolio to support the achievement of sustainable development goals, improve
the effectiveness and reduce associated risk (restructure portfolio);
- Improve reporting system
for the management of public debt and national credit rating; support reaching
out to investor community;
- Asses the current
situation and advise to develop information system for management of public
debt, integration of existing databases into a fiscal-public debt data
warehouse for reporting, forecasting and analysing risks of public debt
portfolio.
Activities related to Output
6.2:
- Advise on the
modernization of public debt management system;
- Advise, on the
organisation of public debt management function in MOF in alignment with
international good practices;
- Support to assess and
report on operational risk in public debt management.
Activities related to Output
6.3:
- Support the development of
detailed guidance guiding the implementation of major public debt management
processes at both central and provincial level;
- Review, update and develop
new guidance relevant for the modernization of public debt management system;
advise on processes for control of operational risk in public debt management;
Develop handbook on implementation of medium-term public debt management plan.
Activities related to Output
6.4:
- Provide trainings on
public debt management processes to be implemented at national and provincial
levels;
- Update the statistical
models and macro-fiscal-debt analysis to support policy making process;
- Provide trainings on
statistical tools, data analysis, application of macro-fiscal-public debt
analytical framework and other necessary skills for management of public debt;
- Provide trainings on
credit rating, investor relations.
Activities related to Output
7.1:
- Advise on requirements,
priorities and action plan for implementation of BEPS (base erosion and profit
shifting) packages, support the participation in Global Forum on Transparency
and Exchange of Information for Tax Purposes;
- Support to conduct tax
analysis and assessment of tax expenditure (linked to green growth, energy,
gender mainstreamed), advise on strategic priorities for 2021-2030 reform
strategy and the next 5-year tax reform plan;
- Support to assess tax
policy system and provide recommendations on tax policy reforms;
- Advise to strengthen the
risk management system.
Activities related to Output
7.2:
- Support to develop new
and/or revise a number of tax laws, including Value Added Tax Law, Excise Tax
Law, Export-Import Tax Law, Corporate Income Tax Law, Personal Income Tax Law,
Environmental Protection Tax Law, Law on fees and charges during the 2021-2025
period;
- Provide international
experiences to support the development of tax laws and relevant guiding
documents;
- Support to develop legal
basis regulating the implementation of other actions beyond BEPS’ minimum requirements;
- Support to strengthen tax
audit based on risk assessment;
Activities related to Output
7.3:
- Support to assess tax
policies systems and advise on tax policy reform;
Activities related to Output
7.4:
- Provide trainings and
workshop to discuss and share local and international practices and experiences
- Provide trainings on
transfer pricing audit;
- Improve capacity on tax
policies.
These activities are
indicative and can be updated during the implementation phase
2.3. Mainstreaming
As a result of the donor
community’s advocacy for gender equality, the Partner has required gender to be
mainstreamed in all socio-economic policies. By supporting a more efficient
macro-fiscal-public finance management framework, the Action will contribute to
more efficient implementation of public policies on gender equality. The Action
will introduce gender responsive budgeting, gender neutral tax policies and
other activities to promote for more gender balance under Results 5 and 7.
As the objective of the
Action is to reinforce macro-economic stability, resilience will automatically
become an induced result of the Action.
The Action does not include
environment or climate change as significant objectives, however, it will
advocate for a more environmental and climate friendly regulatory framework and
macro-fiscal policies that promote a greener economy and align with
environmental standards in international trade agreements. Tax and investment
policies can be used as instruments to encourage investments in clean
technologies and production of more environmental friendly goods and services.
The Action will provide training
and capacity-building support, to local authorities of provinces where ethnic
minorities are prevalent.
This intervention is
relevant for the United Nations 2030 Agenda for Sustainable Development. It
contributes primarily to the progressive achievement of SDG 17 ‘Strengthen the
means of implementation and revitalize the global partnership for sustainable
development’, but also promotes progress towards SDG 8 'Promote sustained,
inclusive and sustainable economic growth, full and productive employment and
decent work for all', SDG 5 ‘Achieve gender equality and empower all women arid
girls’ and SDG 16 'Promote peaceful and inclusive societies for sustainable
development, provide access to justice for all and build effective, accountable
and inclusive institutions at all levels’.
2.4. The Intervention Logic
The underlying intervention
logic for this action is that it will contribute to sustainable development and
inclusive growth in Viet Nam by enhancing tire Partner’s ability in doing
economic governance. A strengthened socio-economic planning system, an improved
doing business environment and an enhanced tax environment create strong
foundations for economic growth while enabling a broadened tax base and
mobilization of private investment for further development. A stronger public
financial management system, including improved budget planning and execution
system, domestic resource mobilization, public debt management, public investment
and public procurement system, will enable more effective and efficient
collection and allocation of public resources, thereby reinforcing
macroeconomic stability.
The Action foresees supports
at both policy and implementation level. At the policy level, the Action seeks
to align better the country system to international standards and good
practices, and to create a more consistent regulatory framework to be applied
at all levels. At the implementation level, advisory services will be provided
lo the Partner to support the implementation process. Local and international
experts will be mobilized to work side by side with officers of the Partner to
enable direct transfer of knowledge, thereby building their knowledge and
implementation capacity.
Economic governance remains
an important priority in the Partner’s development agenda. The EU has strong
advantages as a traditional and long-term partner with excellent technical
expertise in this area. The EU Delegation has been maintaining a good level of
collaboration with other active development partners to ensure technical
assistance is provided to the Partner in a coherent and coordinated way.
2.5. Indicative Logical
framework matrix
|
Results
|
Results
chain: Main expected results
|
Indicators
|
Baseline
(values and years)
|
Targets
(values and years;
|
Sources
of data
|
Assumptions
|
|
Impact
|
To contribute sustainable
development and inclusive growth in Viet Nam by strengthening economic
governance
|
1.1 Poverty rate (persons
living below poverty line)
1.2 GDP/capita in current
USD
1.3 Number of targets
under the VSDGs met
|
Projects to carry out
baseline collection exercise / baseline study during inception phase
|
Projects to define targets
during inception phase
|
Partner’s reports
Development partners’ reports
|
Not applicable
|
|
Outcome
1
|
1. Doing business
environment is improved
|
1.1 World Bank doing
business index of Viet Nam
|
|
|
1.1. WB annual Doing
Business report
|
There are no major events
(such as COVID19 pandemic) that could deteriorate significantly the country’s
socio- economic condition or reorient Partner’s focus on
economic governance.
|
|
Outcome
2
|
2. Planning management is
strengthened
|
2.1 Status of planning
framework at the Rational and provincial level
|
|
|
2.1 Partner’s reports and
published documents;
|
|
Outcome
3
|
3. Public Investment
Management is improved
|
3.1 Status of availability
of information on public investment
|
|
|
3.1. IMF PIMA report
|
|
Outcome
4
|
4. Public procurement
system is strengthened
|
4.1 Score of PEFA
indicator on public procurement
4.2 Number of procurements
done through e-procurement system
|
|
|
4.1 PEFA assessment
4.2 Partner’s reports
|
|
Outcome
5
|
5. State budget management
and revenue forecasting is improved
|
5.1 PEFA indicator scores
(PI14, PI15, PI16)
5.2. Status of the new PFM
Reform Strategy
|
|
|
5.1 PEFA assessment
5.2 Partner’s documents
|
|
Outcome
6
|
6. Management of public
debt is enhanced
|
6.1 Status of Risk
management framework at the national and provincial level
6.2 Rating of Public Debt
Sustainability Analysis
6.3 Status of Public Debt
Management Pian
|
|
|
6.1 Partner’s reports
6.2 IMF article IV DSA
6.3 Partner’s documents
|
|
Outcome
7
|
7. Tax environment and
revenue mobilization is enhanced
|
7.1 Domestic revenue as
share of GDP
7.2 Paying tax score
7.3 Selected TADAT
indicators
7.4 Status of Tax Reform
Plan
|
|
|
7.1 Partner’s reports
7.2 WB Doing business
report
7.3 TADAT report
7.4 Partner document
|
|
|
Outputs
related to Outcome 1
|
1.1 Methodology and
technical tools to evaluate business performance and predict business development
trend are developed
|
1.1.1 Number of
methodology and technical tools developed and provided
|
|
|
Project reports
|
Strong leadership of MPI
Good level of
inter-ministerial cooperation
MPI allocates sufficient
human resources (staff time and technical inputs)
|
|
1.2 Databases on
businesses are developed, updated and integrated to support business
performance assessment and prediction of business development trend
|
1.2.1 No. of databases
system updated and integrated
|
|
1.3 Reporting system for
the assessment of business performance and prediction of business development
trend is established
|
1.3.1 Status of the
reporting system
|
|
1.4 Policy framework to
support private sector development, transparency and fair competition is
enhanced
|
1.4.1 No. of legal
documents revised/developed.
|
|
Outputs
related to Outcome 2
|
2.1 Legal framework and
analytical work for planning management is further developed supporting the
implementation of the Law on Planning
2.2 Staff capacity is
strengthened
2.3. Transparency in
planning management is enhanced through application of information technology
|
2.1.1 No. of legal
documents revised/developed
2.2.1 No. of Partner’s
staff trained (m/f)
2.2.2 No. of studies
conducted
2.2.3 No. of persons
trained in workshops (m/f)
2.3.1 Status of
publication of information on planning
|
|
|
Project reports
|
|
Outputs
related to Outcome 3
|
3.1 Legal and regulatory
framework governing public investment is strengthened
3.2 The capacity and
interoperation of information systems and databases on public investments are
improved
3.3 Transparency of public
investment is improved through application of information technology
3.4 Staff capacity is
strengthened
|
3.1.1 No. of legal
documents revised/developed
3.2.1 Number of
information systems and databases upgraded, and integrated
3.3.1 Status of
preparatory steps for making information on public investment available
3.4.1 No. of Partner’s
staff trained (m/f)
3.4.2 No. of studies
conducted
3.4.3 No. of persons
trained in workshops (m/f)
|
|
|
Project reports
|
|
|
Outputs
related to Outcome 4
|
4.1 Legal and regulatory
framework governing public procurement is strengthened
4.2 Guidance on
implementation of the Partner's public procurement commitments in the EVFTA
is developed
4.3 Capacity of relevant
Partner’s bodies is enhanced to enable effective and efficient management of
public - investment and implementation of EVFTA commitments
4.4 Participation of local
enterprises into the EU’s public procurement is promoted
4.5 Participation of EU
companies into Viet Nam’s public procurement is promoted
|
4.1.1 No. of legal
documents revised/developed
4.2.1 No. of guidance
documents produced
4.3.1 No. of Partner’s
staff trained on public investment in EVFTA (m/f)
4.3.2 No. of studies
conducted
4.3.3 No. of persons (m/f)
trained in workshops
4.4.1 No. of Vietnamese businesses
informed about the EU’s Partner’s procurement market requirements and
opportunities
4.5.1 Status of E-catalogue
4.5.2 Status of
E-procurement system
|
|
|
Project reports
|
|
|
Outputs
related to Outcome 5
|
5.1 Assessment of the
implementation of the State Budget Law 2015 in the past 5 years is conducted
5.2 Legal and regulatory
framework is strengthened
5.3 Guidance,
methodologies and technical tools for macro- fiscal-revenue forecasting are
further developed
5.4 Staff capacity is
enhanced
5.5 Citizens have improved
knowledge and access to budget information
5.6 Information system is
enhanced to enable better disclosure of budget information
|
5.1.1 Status of
assessment/analysis on the law implementation
5.2.1 No. of legal
documents revised/developed
5.3.1 No. of guidance,
methodologies and technical tools provided
5.4.1 No. of Partner’s
staff trained (m/f)
5.4.2 No. of studies
conducted
5.4.3 No. of persons
trained in workshops (m/f)
5.5.1 Status of
publication of citizen budget document
5.6.1 Status of information
system
|
|
|
Project reports
|
Sufficient horizontal and
vertical collaboration
MOF allocates sufficient
human resources (staff time and technical inputs)
|
|
Outputs
related to Outcome 6
|
6.1 International
standards are reviewed and necessary inputs are collected to develop public
debt management strategy
6.2 Legal and regulatory
framework is modernized and roles and responsibilities of relevant bodies are
further clarified
6.3 Detailed guidance are
developed to support implementation
6.4 Staff capacity is strengthened
|
6.1.1 Status of Assessment
report
6.1.2 Status of draft
public debt management strategy/plan
6.2.1 No. of legal
documents revised/developed
6.3.1 No. of guidance
developed and provided to the Partner
6.4.1 No. of Partner’s
staff trained (m/f)
6.4.2 No. of studies
conducted
6.4.3 No. of persons
trained in workshops (m/f)
|
|
|
Project reports
|
|
Outputs
related to Outcome 7
|
7.1 International
standards are reviewed and necessary inputs are collected to develop tax
management strategy
7.2 Legal and regulatory
framework is modernized, roles and responsibilities of relevant bodies are
clarified
7.3 Organizational
development is supported and guidance are developed
7.4 Staff capacity is
strengthened
|
7.1.1 Status of Assessment
report
7.1.2 Status of draft tax
reform plan
7.2.1 No. of legal
documents/guidance revised/produced
7.3.1 No. of
guidance/manual developed
7.4.1 No. of Partner’s
staff trained (m/f)
7.4.2 No. of studies
conducted
7.4.3 No. of persons
trained in workshops (m/f)
|
|
|
Project reports
|
3. IMPLEMENTATION
ARRANGEMENTS
3.1. Implementation
Modalities
The Commission will ensure
that the EU appropriate rules and procedures for providing financing to third
parties are respected, including review procedures, where appropriate, and
compliance of the action with EU restrictive measures[1].
3.1.1 Direct Management
(Procurement)
A part of this action may be
implemented through a service contract. This implementation entails the
attainment of Specific Objectives (Outcomes) 1, 2, 3 and 4 as specified under section
2.
3.1.2 Indirect Management
with a Member State Organization
A part of this action may be
implemented in indirect management with the Deutsche Gesellschaft für
Internationale Zusammenarbeit (GIZ). This implementation entails the attainment
of Specific Objectives (Outcomes) 5, 6 and 7 as specified under section 2. The
envisaged entity has been selected using the following criteria:
• Several years of
experience in providing technical assistance to the Partner in the areas of
macroeconomic and PFM reform;
• Good working relationship
with the Partner.
In case the envisaged entity
would need to be replaced, the Commission’s services may select a replacement
entity using the same criteria. If the entity is replaced the decision to
replace it needs to be justified.
3.2. Scope of geographical
eligibility for procurement and grants
The geographical eligibility
in terms of place of establishment for participating in procurement and grant
award procedures and in terms of origin of supplies purchased as established in
the basic act and set out in the relevant contractual documents shall apply,
subject to the following provisions.
The Commission’s authorising
officer responsible may extend the geographical eligibility on the basis of
urgency or of unavailability of products and services in the markets of the
countries concerned, or in other duly substantiated cases where the eligibility
rules would make the realisation of this action impossible qr exceedingly
difficult.
3.3. Indicative budget
|
Indicative
Budget components
|
EU
contribution (amount in EUR)
|
Third-party
contribution (amount in EUR)
|
|
Implementation modalities -
cf. section 3.1
|
|
|
Direct management
(Procurement) - cf. section 3.1.1
|
5
500 000
|
N/A
|
|
Indirect management with
GIZ - cf. section 3.1.2
|
12
000 000
|
2 000
000
|
|
Evaluation
(cf. section 4.2)
Audit and Verifications
(cf. section 4.3)
|
500
000
|
N/A
|
|
Communication and
visibility (cf. section 5)
|
N/A
|
N/A
|
|
Total
|
18
000 000
|
2
000 000
|
3.4. Organisational set-up
and responsibilities
The Ministry of Planning and
Investment (MPI) is the Partner’s lead agency for the implementation of this
Action. MPI is the primary Partner’s agency for the implementation of the
procurement contract. The Ministry of Finance (MOF) is the primary Partner’s
agency for the implementation of the delegated agreement with GIZ.
The entire Action will be
supervised through an Annual Coordination Meeting. The Annual Coordination
Meeting will be organized on an annual basis to (i) oversee and coordinate the
overall implementation of the Action and its component projects and (ii) to
ensure the effective collaboration between relevant stakeholders.
The Annual Coordination
Meeting will consist of representatives of MPI, MOF, EU Delegation to Viet Nam,
German Embassy in Viet Nam and GIZ. The Annual Coordination Meeting will be chaired
by MPI and co-chaired by the EU Delegation to Viet Nam. The committee’s
decisions will be taken by consensus.
In case the Annual
Coordination Meeting cannot be held either in person or virtually, the
representatives will communicate using suitable means to take decisions by
consensus.
A committee for each project
will also be established to oversee the implementation of each project.
The Steering Committee of
the project with MPI shall be made up of: a senior representative of MPI (Chair),
a senior representative of the EU Delegation to Viet Nam (Co-chair), and
representatives of relevant departments and units of MPI.
The Steering Committee of
the project with MOF shall be made up of: a senior representative of MOF
(Chair), a senior representative of the EU Delegation to Viet Nam (Co-chair), a
representative of the German Embassy in Viet Nam, a representative of GIZ, and
representatives of relevant departments and units of MOF.
As part of its prerogative
of budget implementation and to safeguard the financial interests of the Union,
the Commission may participate in the above governance structures set up for
governing the implementation of the action.
4. PERFORMANCE
MEASUREMENT
4.1. Monitoring and
reporting
The day-to-day technical and
financial monitoring of the implementation of this action will be a continuous
process, and part of the implementing partner’s responsibilities. To this aim,
the implementing partner shall establish a permanent internal, technical and
financial monitoring system for the action and elaborate regular progress
reports (not less-than annual) and final reports. Every report shall provide an
accurate account of implementation of the action, difficulties encountered,
changes introduced, as well as the degree of achievement of its results
(Outputs and direct Outcomes) as measured by corresponding indicators, using as
reference the Logframe matrix (for project modality) or the
partner’s strategy, policy or reform action plan list (for budget support).
The Commission may undertake
additional project monitoring visits both through its own staff and through
independent consultants recruited directly by the Commission for independent
monitoring reviews (or recruited by the responsible agent contracted by the Commission
for implementing such reviews).
Reports shall be laid out m
such a way as to allow monitoring of the means envisaged and employed and of
the budget details for the action. The final report, narrative and financial,
will cover the entire period of the action implementation.
4.2. Evaluation
Having regard to the nature
of the action, mid-term and final evaluations will be carried out for this
action or its components via independent consultants contracted by the
Commission.
The mid-term evaluation will
be carried out for problem solving, learning purposes, in particular with
respect to the effectiveness and sustainability of the action and will offer
recommendations for improvement.
The final evaluation will be
carried out for accountability and learning purposes at various levels
(including for policy recommendation), taking into account in particular the
fact that the Action supports the country’s post 2020 development strategy and
2030 Sustainable Development Agenda.
The Commission shall inform
the implementing partner at least one month in advance of the dates foreseen
for the evaluation missions. The implementing partner shall collaborate
efficiently and effectively with the evaluation experts, and inter alia provide
them with all necessary information and documentation, as well as access to the
project premises and activities.
The evaluation reports shall
be shared with the partner country and other key stakeholders following the
best practice of evaluation dissemination[2].
The implementing partner and the Commission shall analyse
the conclusions and recommendations of the evaluations and, where appropriate,
in agreement with the partner country, jointly decide on the follow-up actions
to be taken arid any, adjustments necessary, including, if indicated, the
reorientation of the project.
Evaluation services may be
contracted under a framework contract.
4.3. Audit and Verifications
Without prejudice to the
obligations applicable to contracts concluded for the implementation of this
action, the Commission may, on the basis of a risk assessment, contract
independent audits or expenditure verification assignments for one or several
contracts or agreements.
It is foreseen that audit
and verifications services may be contracted under a framework contract.
5. COMMUNICATION
AND VISIBILITY
Communication and visibility
is a contractual obligation for all entities implementing EU-funded external
actions to advertise the European Union’s support for their work to the
relevant audiences.
To that end they must comply
with the instructions given in the Communication and Visibility Requirements
of 2018 (or any successor document), notably with regard to the use of the
EU emblem and the elaboration of a dedicated communication and visibility plan,
to be completed for every action at the start of implementation.
These obligations apply
equally, regardless of whether the actions concerned are implemented by the
Commission, the partner country (for instance, concerning the reforms supported
through budget support), contractors, grant beneficiaries or entrusted entities.
In each case, a reference to the relevant contractual obligations must be
included in the respective financing agreement, procurement and grant
contracts, and delegation agreements.
Communication and visibility
measures may be funded from the amounts allocated to the action. For the
purpose of enhancing the visibility of the EU and its contribution to tins
action, the Commission may sign or enter into joint, declarations or
statements, as part of its prerogative of budget implementation and to
safeguard the financial interests of the Union. Visibility and communication
measures should also promote transparency and accountability on the use of
funds.
Effectiveness of
communication activities on awareness about the action and its objectives as
well as on EU funding of the action should be measured.
Implementing partners shall
keep the Commission and concerned EU Delegation fully informed of the planning
and implementation of specific visibility and communication activities before
work starts. Implementing partners will ensure adequate visibility of EU
financing and will report on visibility and communication actions as well as
the results of the overall action to the relevant monitoring committees.
Financing Agreement - Annex
II - General Conditions
ANNEX II - GENERAL CONDITIONS
Contents
ANNEX II - GENERAL
CONDITIONS
Contents :
Part One: Provisions
Applicable to Activities for which the Partner is the Contracting Authority
Article 1 - General
principles
Article 2 - Deadline for the
signature of contracts and agreements by the Partner
Article 3 - Exclusion and
administrative sanctions
Article 4 - Partial
delegation
Article 5 - Imprest
component of the programme estimate
Article 6 - Pool fund
managed by the Partner
Article 7 - Publication of
information on procurement and grant contracts by the Partner
Article 8 - Recovery of
funds
Article 9 - Financial claims
under procurement and grant contracts
Article 10 - Cost overruns
and ways of financing them
Part Two: Provisions
Applicable to Budget Support
Article 11 - Policy dialogue
Article 12 - Verification of
conditions and disbursements
Article 13 - Transparency of
budget support
Article 14 - Recovery of
budget support
Part Three: Provisions
Applicable to this Action as a Whole, Irrespective of the Management Mode
Article 15 - Execution
period and contracting deadline
Article 16 - Verifications
and checks by the Commission, the European Anti-Fraud Office (OLAF) and the
European Court of Auditors
Article 17 - Tasks of the
Partner in fighting irregularities, fraud and corruption
Article 18 - Suspension of
payments
Article 19 - Allocation of
funds recovered by the Commission to the action
Article 20 - Right of establishment
and residence
Article 21 - Tax and customs
provisions and foreign exchange arrangements
Article 22 - Confidentiality
Article 23 - Use of studies
Article 24 - Consultation
between the Partner and the Commission
Article 25 - Amendment of
this Financing Agreement
Article 26 - Suspension of this
Financing Agreement
Article 27 - Termination of
this Financing Agreement
Article 28 - Dispute
settlement arrangements
Part One: Provisions Applicable to Activities for which the
Partner is the Contracting Authority
Article
1 - General principles
1.1 The purpose of Part One
is to define the tasks entrusted to the Partner in indirect management as
described in Annex I (Technical and Administrative Provisions) and to define
the rights and obligations of the Partner and of the Commission in carrying out
these tasks.
Part One shall apply to the
tasks related to the EU contribution alone or in combination with the funds of
the Partner or of a third party where such funds are implemented in joint
co-financing, i.e. where they are pooled.
These tasks encompass the
implementation by the Partner as contracting authority of procedures for the
award of procurement contracts, grant contracts and contribution agreements as
well as the awarding, signing and enforcing of the resulting procurement
contracts, grant contracts and contribution agreements. For the purpose of Part
One of this Financing Agreement, every reference to grant contracts shall also
include contribution agreement and every reference to grant beneficiaries shall
also include organisations having signed contribution agreements.
The designation of entities
pertaining to the Partner's government or administrative structure and
identified in Annex I (Technical and Administrative Provisions) to carry out
certain tasks, does not qualify as sub-delegation. Such entities shall respect
the rights and obligations laid down in Part One for the Partner as contracting
authorities, while at the same time the Partner remains fully responsible for
the fulfilment of the obligations stipulated in this Financing Agreement.
References in the Financing Agreement to Partner also encompass those entities.
As contracting authority,
the Partner shall act under partial delegation, except when it acts under the
imprest component of a programme estimate or under a Partner managed pool fund:
- Under partial delegation,
the Partner acts as contracting authority for procurement contracts, grant
contracts , whereby the Commission controls ex ante all award procedures and
executes all related payments to the contractors and grant beneficiaries;
- Under the imprest
component of a programme estimate, the Partner acts as contracting authority
for procurement and grant contracts, whereby it may, up to established
thresholds, conduct procurement and grant award procedures without or with
limited ex ante control of the Commission and execute payments to the
contractors and grant beneficiaries, as well as in the context of direct
labour.
- Under a Partner managed
pool fund, the Partner acts as contracting authority for procurement contracts
and grant contracts, whereby the Commission does not control ex ante any award
procedure and the Partner executes all related payments to the contractors and
grant beneficiaries.
Where the Partner is an ACP
State and the action is financed by the EDF pursuant to Article 1.1 of the
Special Conditions, the tasks entrusted shall be these listed in points (c) to
(k) of the sixth subparagraph of Article 35(1) and in Article 35(2) of Annex IV
to the ACP-EC Partnership Agreement
Where the Partner is an OCT
and the action is financed by the EDF pursuant to Article 1.1 of the Special
Conditions, the implementation of tasks entrusted shall also respect the
conditions of Article 86(3) of Council Decision 2013/755/EU of 25 November 2013
on the association of the overseas countries and territories-with the European
Union (Overseas Association Decision).
1.2 The Partner shall remain
responsible for the fulfilment of the obligations stipulated in this Financing
Agreement even if it designates other entities identified in Annex I (Technical
and Administrative Provisions) to carry out certain tasks. The Commission, in particular,
reserves the right to suspend payments, and to suspend and/or terminate this
Financing Agreement on the basis of the acts, omissions and/or situations of any
designated entity.
1.3 The Partner shall set up
and ensure the functioning of an effective and efficient internal control
system. The Parmer shall respect the principles of sound financial management,
transparency, non-discrimination, visibility of the European Union in the
implementation of the action and avoid situations of conflict of interest.
A conflict of interest
exists where the impartial and objective exercise of the functions of any.
responsible person is compromised for reasons involving family, emotional life,
political o… national affinity, economic interest or any other direct or indirect
personal interest.
Internal control system is a
process aimed at providing reasonable assurance that operations are effective,
efficient and economical, that the reporting is reliable, that assets and
information are safeguarded, that fraud and irregularities are prevented,
detected and corrected, and that risks relating to the legality and regularity
of the financial operation are adequately managed, taking into account the multiannual
character of the activities as well as the nature of the
payments concerned.
In particular, where the
Partner carries out payments under the imprest component of a programme
estimate or in the framework of a Partner managed pool fund, the functions of
the authorising and accounting officers shall be segregated and mutually incompatible
and the Partner shall operate an accounting system that
provides accurate, complete, reliable and timely information.
1.4 Outside the cases where
the Partner applies its own (including in the case of a Partner managed pool
fund, those agreed upon by the pool fund's donors) procedures and standard
documents for the award of procurement contracts and grant contracts, the
Partner shall conduct the award procedures and conclude the resulting contracts
and agreements in the language of this Financing Agreement.
1.5 The Partner shall take
the necessary measures to ensure the visibility of EU funding for the
activities entrusted to it or for other activities under this action. These
measures shall either be defined in Annex I (Technical and Administrative
Provisions) or shall be agreed later between the Partner and the Commission.
These communication and
information measures shall comply with the Communications and Visibility
Requirements for EU External Actions laid down and published by the Commission,
in force at the time of the measures.
1.6 Under partial delegation
and under the imprest component of a programme estimate, the Partner shall keep
all relevant financial and contractual supporting documents from the date of
the entry into force of this Financing Agreement or as from an earlier date
which is stipulated as the start date of cost eligibility in Article 6 of the
Special Conditions for five years as from the end of the execution period, in
particular, the following:
Procurement procedures:
a. Forecast notice with
proof of publication of the procurement notice and any corrigenda
b. Appointment of shortlist
panel
c. Shortlist report (inch
annexes) and applications
d. Proof of publication of
the shortlist notice
e. Letters to
non-shortlisted candidates
f. Invitation to tender or
equivalent
g. Tender dossier including
annexes, clarifications, minutes of the meetings, proof of publication
h. Appointment of the
evaluation committee
i. Tender opening report,
including annexes
j. Evaluation / negotiation
report, including annexes and bids received1
k. Notification letter
l. Supporting documents
m. Cover letter for
submission of contract
a. Letters to unsuccessful
candidates
o. Award / cancellation
notice, including proof of publication
p. Signed contracts,
amendments, riders and relevant correspondence
Calls for proposals and
direct award of grants;
a. Appointment of the
evaluation committee
b. Opening and
administrative report including annexes and applications received2
c. Letters to successful and
unsuccessful applicants following concept note evaluation
d. Concept note evaluation
report
e. Evaluation report of the
full application or negotiation report with relevant annexes
f. Eligibility check and
supporting documents
g. Letters to successful and
unsuccessful applicants with approved reserve list following full application
evaluation
h. Cover letter for
submission of grant contract
I. Award/cancellation notice
with proof of publication
j. Signed contracts,
amendments, riders and relevant correspondence.
1.7 The Partner shall ensure
an appropriate protection of personal data. Personal data means any information
relating to an identified or identifiable natural person.
Personal data shall be:
- Processed lawfully, fairly
and in a transparent manner in relation to the data subject;
- Collected for specified,
explicit and legitimate purposes and not further processed in a manner that is
incompatible with those purposes;
- Adequate, relevant and
limited to what is necessary in relation to the purposes for which they are
processed;
- Accurate and, where
necessary, kept up to date;
- Processed in a manner that
ensures appropriate security of the personal data and
- Kept in a form which
permits identification of data subjects for no longer than is necessary for the
purposes for which the personal data are processed. Personal data included in
documents to be kept by the Partner in accordance with Article 16.1 has to be
deleted once the deadline set out in Article 16.1 has expired.
Any operation involving the
processing of personal data, such as collection, recording, organisation,
storage, adaption or alteration, retrieval, consultation, use, disclosure,
erasure or destruction, shall be based on rules and procedures of the Partner
and shall only be done as far as it is necessary for the implementation of this
Financing Agreement.
In particular, the Partner
shall take appropriate technical and organisational security measures
concerning the risks inherent in any such operation and the nature of the
information relating to the natural person concerned, in order to:
a) Prevent any unauthorised
person from gaining access to computer systems performing such operations, and
especially unauthorised reading, copying, alteration or removal of storage
media; unauthorised data input as well as any unauthorised disclosure,
alteration or erasure of stored information;
b) Ensure that authorised
users of an IT system performing such operations can access only the
information to which their access right refers;
c) Design its organisational
structure in such a way that it meets the above requirements.
Article
2 - Deadline for the signature of contracts and agreements by the Partner
2.1 The procurement
contracts and grant contracts shall be signed during the operational
implementation period of this Financing Agreement.
When implementing a
multi-donor Action, the procurement contracts and grant contracts shall be
concluded within the contracting deadline set out in the Special Conditions or
set out for the imprest component of the programme estimate.
When the Action is not a
multi-donor Action, procurement contracts and grant contracts shall be
concluded at the latest within three years of the entry into force of this
Financing Agreement.
Additional procurement
contracts and grant contracts resulting from an amendment to this Financing Agreement
which increases the EU contribution shall be signed at the latest within three
years of the entry into force of that amendment to this Financing Agreement, or
for a multi-donor Action within the fixed contracting deadline for the
additional EU contribution.
The three years-deadline for
non-multi-donor Actions may not be extended, except when the action is financed
by the EDF. In such cases, the extension shall be stipulated in Article 6 of
the Special Conditions.
2.2 However, the following transactions
may be signed at any time during the operational implementation period:
a. amendments to procurement
contracts and grant contracts already signed;
b. procurement contracts and
grant contracts to be concluded after early termination of existing procurement
contracts and grant contracts;
c. contracts relating to
audit and evaluation, which may also be signed during the closure period;
d. operating costs referred
to in Article 5.1;
2.3 After expiry of the
deadlines referred to in Article 2.1, the financial balance for the related
activities entrusted to the Partner for which contracts have not been duly signed
shall be decommitted by the Commission.
2.4 No such decommitment
shall apply to the funds budgeted for audit and evaluations referred to in
Article 2.2.c) or the operating costs referred to in Article 2.2.d).
Likewise, no such
decommitment shall apply to any financial balance of the contingency reserve or
to funds available again after early termination of a contract referred to in
Article 2.2.b), which both may be used to finance contracts referred to in
Article 2.2.
Article
3 - Exclusion and administrative sanctions
3.1 Exclusion criteria
3.1.1 When applying the
procedures and standard documents laid down and published by the Commission for
the award of procurement and grant contracts, the Partner shall accordingly
ensure that no EU financed procurement or grant contract is awarded to an
economic operator or grant applicant if the economic operator or grant
applicant either itself, or a person having powers of representation, decision
making or control over it, is in one of the exclusion situations provided for
in the relevant procedures and standard documents of the Commission.
3.1.2 When applying its own
(including, in the case of a Partner managed pool fund, those agreed upon by the
pool fund's donors) procedures and standard documents for the award of
procurement and grant contracts, the Partner shall adopt measures, in
accordance with its own national legislation, to ensure that no EU financed
procurement or grant contract is awarded to an economic operator or grant
applicant if the Partner becomes aware that these entities:
a) or persons having powers of
representation, decision making or control over them, have been the subject of
a final judgement or of a final administrative decision for fraud, corruption,
involvement in a criminal organisation, money laundering, terrorist-related
offences, child labour or trafficking in human beings;
b) or persons having powers
of representation, decision making or control over them have been the subject
of a final judgement or of a final administrative decision for an irregularity
affecting the EUʼs financial interest;
c) are guilty of
misrepresentation in supplying the information required as a condition of
participation in the procedure or if they fail to supply this information;
d) have been the subject of
a final judgment or of a final administrative decision establishing that the
entities have created an entity under a different jurisdiction with the
intention to circumvent fiscal, social or any other legal obligations of
mandatory application in the jurisdiction of its registered office, central
administration or principal place of business;
c) have been created with
the intention described in point d) above as established by a final judgment or
a final administrative decision.
The Partner may take into
account, as appropriate and on its own responsibility, the information
contained in the Commission’s Early Detection and Exclusion System when
awarding procurement and giant contracts. Access to the information can be
provided through the liaison point(s) or via consultation to the Commission
(European Commission, Directorate- General for Budget, Accounting Officer of
the Commission, BRE2-13/505, B-1049 Brussels, Belgium and by email to
BUDG-C01-EXCL-DB@.ec.europa.eu in copy to the Commission address identified in
Article 3 of the special Conditions). The Commission may refuse payments to a
contractor or grant beneficiary in an exclusion situation.
3.2 Information duty
The Partner shall inform the
Commission when an economic operator or grant applicant is in a situation
referred to in Article 3.1, or has committed irregularities
and fraud, or has been found in serious breach of its contractual obligations.
3.3 Administrative sanctions
Where the Partner becomes aware
of one of the situations referred to in Article 3.1 in the implementation of
the tasks described in Annex I, the Partner shall, under the conditions of its
national legislation, impose upon the economic operator or grant applicant, an
exclusion from its future procurement or grant award procedures and/or a financial
penalty proportional to the value of the contract concerned. Such financial
penalties or exclusions shall be imposed following an adversarial procedure
ensuring the right of defence of the person concerned.
The Partner may be exempted
from the obligations under the first paragraph where:
- the Partner’s national
legislation does not allow to impose an exclusion and/or a financial penalty,
- the protection of the EU's
financial interests requires to impose an administrative sanction within
deadlines incompatible with the Partner’s internal procedures, the imposition
of an administrative sanction requires a mobilisation of resources beyond the
Partner's means,
- its national legislation
does not allow to exclude an economic operator from all EU financed award
procedures.
In such cases, the Partner
will notify its impediment to the Commission. The Commission may decide to
impose to the economic operator or grant applicant an exclusion from future EU
financed award procedures and/or a financial penalty between 2 % and 10% of the
total value of the contract concerned.
Article
4 - Partial delegation
Award procedures
4.1 The tasks shall be
carried out by the Partner in accordance with the procedures and standard
documents laid down and published by the Commission for the award of
procurement contracts and grant contracts, in force at the time of the launch
of the procedure in question.
Ex ante control
4.2 To allow ex ante
control, the Partner shall submit tender dossiers and documents for calls for
proposals, to the Commission for approval before launching invitations to
tender and calls for proposals. Likewise, the Partner shall invite the
Commission to the opening of tenders and proposals, and shall provide the
Commission with copies of tenders and proposals received. The Partner shall
notify the Commission of the results of the examination of tenders and
proposals and shall submit the award proposal, as well as the draft procurement
contracts and grant contracts to the Commission for approval,
During the implementation of
the procurement contracts and grant contracts, the Partner shall equally submit
draft addenda and draft administrative orders thereto, to the Commission for
prior approval.
The Partner shall invite the
Commission for provisional and final acceptance.
Report / Management
Declaration
4.3 If Article 5 of the
Special Conditions so provides, the report on the implementation of the tasks
entrusted to the Partner shall follow the template provided in Annex III and
the management declaration shall follow the template provided in Annex IV. An
independent external audit opinion on the management declaration, performed in
accordance with internationally accepted auditing standards, does not have to
be provided in this case as the Commission shall conduct the audits for this
action. These, audits will verify the truthfulness of the assertions made in
the management declaration and the legality and regularity of the underlying
transactions made.
Payment procedures
4.4 The Partner shall
provide the Commission with the approved payment requests within the following
deadlines, starting from the date of receipt of the payment request, not
counting the periods of suspension of the time-limit for payment:
(a) for pre-financing
specified in the procurement contract and grant contract:
(i) 15 calendar days for an
action financed under the Budget;
(ii) 30 calendar days for an
action financed under the EDF;
b) 45 calendar days for
other payments
The Commission shall act in
accordance with Articles 4.9 and 4.10 within the period amounting to the
time-limit for payment provided for in the procurement contract and grant
contracts minus the above deadlines.
4.5 Upon receipt of a paymen
t request from a contractor, or grant beneficiary, the Partner shall inform the
Commission of its receipt and shall immediately examine whether the request is
admissible, i.e. whether it contains the identification of that contractor or
grant beneficiary, the contract or agreement concerned, the amount, the
currency and the date. If the Partner concludes that tile request is
inadmissible, it shall reject it and inform the contractor or grant beneficiary
of this rejection and of its reasons within 30 days of receipt of the request.
The Partner shall also inform the Commission of this rejection and its reasons.
4.6 Upon receipt of an
admissible payment request, the Partner shall examine whether a payment is due,
i.e. whether all contractual obligations justifying the payment have been
fulfilled, including examining a report, where applicable. If the Partner
concludes that a payment is not due, it shall inform the contractor or grant beneficiary
thereof and of the reasons. The dispatch of this information suspends the
time-limit for payment. The Commission shall receive a copy of the information
so dispatched. The Commission shall also be informed of the reply or corrective
action of the contractor or grant beneficiary. That reply or action aimed at
correcting the non- compliance with its contractual obligations shall restart
the time-limit for payment. The Partner shall examine this reply or action
pursuant to this paragraph.
4.7 If the Commission
disagrees with the Partner's conclusion that a payment is not due, it shall
inform the Partner thereof. The Partner shall re-examine its positions and, if
it concludes that the payment is due, it shall inform thereof the contractor
or, grant beneficiary. The suspension of the time-limit for payment shall be
lifted upon dispatch of this information. The Partner shall also inform the
Commission. The Partner shall further proceed as provided for in Article 4.8.
If disagreement between the
Partner and the Commission persists, the Commission may pay the undisputed part
of the invoiced amount provided that it is clearly separable from the disputed
amount. It shall inform the Partner and the contractor or grant beneficiary of
this partial payment,
4.8 Where the Partner
concludes that the payment is due, it shall transfer the payment request and
all necessary accompanying documents to the Commission for approval
and payment. It shall provide an overview of how many days of the time-limit
for payment are left and of all periods of suspension of this time-limit.
4.9 After transfer of the
payment request pursuant to Article 4.8, if the Commission concludes that the payment
is not due, it shall inform the Partner and, in copy, the contractor or grant
beneficiary thereof and of the reasons. Informing the contractor or grant
beneficiary shall have the effect of suspending the time-limit for payment, as
provided for in the contract concluded. A reply or corrective action of the
contractor or grant beneficiary shall be treated by the Partner in accordance
with Article 4.6.
4.10 Where the Partner and
the Commission conclude that the payment is due, the Commission shall execute
the payment.
4.11 Where late-payment
interest is due to the contractor or grant beneficiary, it
shall be allocated between the Partner and the Commission pro rata to the days
of delay in excess of the time limits stipulated in Article 4.4, subject to the
following:
(a) the number of days used
by the Partner is calculated from the date of the registration of an admissible
payment request referred to in Article 4.6 to the date of the transfer of the
request to the Commission referred to in Article 4.8 and from the date of
information by the Commission referred to Article 4.9 to the following transfer
of the request to the Commission referred to in Article 4.8. Any period of suspension
of the time-limit for payment shall be deducted.
(b) the number of days used
by the Commission is calculated from the date following that of transfer of the
request by the Partner referred to in Article 4.8 to the date of payment and
from the date of transfer to the date of informing the Partner pursuant to
Article 4.9.
4.12 Any circumstances
unforeseen by the above procedure shall be solved in a spirit of cooperation
between the Partner and the Commission by analogy to the above provisions while
respecting the contractual relations of the Partner with the contractor or
grant beneficiary.
Where feasible, one party
shall cooperate at the request of the other party in providing useful
information for the assessment of the payment request, even before the payment
request is formally transferred to or returned from the first party.
4.13 A procurement contract
or grant contract which has not given rise to any payment within two years of
its signature shall be automatically terminated and its funding shall be
decommitted, except in case of litigation before judicial courts or arbitral
bodies.
Article
5 - Imprest component of the programme estimate
Application
5.1 The programme estimate
is a document laying down the programme of activities to be carried out and the
human and material resources required, the corresponding budget and the
detailed technical and administrative implementing arrangements for the
execution of these operational activities over the operational implementation
period of this Financing Agreement.
The programme estimate
implementing the Financing Agreement must respect the procedures and standard
documents concerning programme estimates laid down by the Commission, in force
at the time of the adoption of the programme estimate in question.
The body implementing those
operational activities within the programme estimate, may be the central
government of the Paltrier itself (central operations) or a commissioned public
law or private law body with a public-service mission (public commissioned
operations) or, under EDF only, a private law body without a public-service
mission on the basis of a service, contract (private commissioned operations).
The programme estimate shall
have an imprest component and may have a component of specific commitments.
Under the component of
specific commitments, Article 4 shall apply.
Under the imprest component
of the programme estimate, the implementing body may, up to established
thresholds, conduct procurement and grant award procedures without or with
limited ex ante control of the Commission and execute payments to the
contractors and grant beneficiaries, as well as in the context of direct
labour.
Direct labour relates to the
operational activities which the implementing body executes directly using
staff it employs and/or its existing resources (machinery, equipment, other
inputs).
The operating costs incurred
by the implementing body may be eligible for EU financing under the imprest
component of the programme estimate. If so, they shall be eligible for EU
financing during the entire duration of the execution period of this Financing
Agreement, unless an earlier start of cost eligibility is stipulated in Article
6 of the Special Conditions, Operating costs are costs of the implementing body
incurred in carrying out implementation tasks and include local, staff,
utilities (e.g. water, gas, and electricity), rental of premises, consumables,
maintenance, short-term business trips and fuel for vehicles. They shall not
include procurement of vehicles or of any other equipment, or any operational
activity. Such ordinary operating costs may be charged and paid in accordance
with the implementing body's own procedures.
Award procedures
5.2 Under the imprest
component of the programme estimate, the implementing body mav carry out,
totally or partially, the award procedures for procurement and grant contracts
in accordance with its own procedures and standard documents, to the extent
that prior evidence is obtained by the Commission that the Partner's
implementing body:
- ensures the functioning of
an effective and efficient internal control system, and
- applies appropriate rules
and procedures for procurement and/or grants.
To the extent that no such
evidence is obtained, the award procedures for procurement and grant contracts
shall be carried out by the implementing body in accordance with the procedures
and standard documents laid down and published by the Commission, in force at
the time of the launch of the procedure in question.
Ex ante control
5.3 Under the imprest
component, unless the Technical and Administrative Arrangements of the programme
estimate stipulate otherwise, the implementing body shall submit to the
Commission for prior approval, the tender dossiers and proposals for award
decision of procurement contracts whose value exceeds 100,000 EUR, as well as
all guidelines for applications and proposals for award decisions of grant
contracts, which follow the procedures and standard documents laid down and
published by the Commission.
In addition to the
record-keeping obligations laid down in Article 1.6 of these General Conditions,
the Partner shall, during the same period, keep all relevant financial and
contractual supporting documents.
Management declaration
5.4 The Partner shall
submit to the Commission annually, by the date stipulated in Article 6 of the
Special Conditions, a management declaration signed by the Partner using the
template in Annex IV.
An independent external
audit opinion on the management declaration, performed in accordance with
internationally accepted auditing standards, does not have to be provided in
this case as the Commission shall conduct the audits for this action. These
audits will verify the truthfulness of the assertions made in the management
declaration and the legality and regularity of the underlying transactions
made.
Payments
5.5 The Commission shall
transfer the first pre-financing instalment, upon signature of the programme
estimate by all parties, within 60 calendar days where the programme estimate
is financed by the EDF and 30 calendar days where it is financed from the EU
Budget,
The Commission shall pay the
further pre-financing instalments within 60 calendar days of receiving and
approving the payment request and its reports.
Late-payment interest shall
be due pursuant to the applicable Financial Regulation. The time-limit for the
payment may be suspended by the Commission by informing the Partner, at any
time during the period referred to above, that the payment request cannot be
met, either because the amount is not due or because the appropriate supporting
documents have not been produced. If information which puts in doubt the
eligibility of expenditure appearing in a payment request comes to the notice
of the Commission, the Commission may suspend the time-limit for the payment
for the purpose of further verification, including an on-the-spot check, in
order to ascertain, prior to payment, that the expenditure is indeed eligible.
The suspension and the reasons for it shall be communicated to the Partner as
soon as possible. The time-limit for the payment shall resume once the missing supporting
documents have been provided or the payment request has been corrected.
5.6 The Commission shall
make payments to a bank account opened at a financial institution accepted by
the Commission.
5.7 The Partner shall
guarantee that funds paid by the Commission can be identified in this bank
account.
5.8 Transfers in euro
shall, if necessary, be converted into the Partner's national currency as and
when payments have to be made by the Partner, at the bank rate in force on the
day of payment by the Partner.
Article
6 - Pool fund managed by the Partner
Application
6.1 The Partner managing a
pool fund, may be eligible for an EU Contribution to that pool fund, to the
extent that prior evidence is obtained by the Commission that Ihe managing
entity within the Partner:
- ensures the functioning of
an effective and efficient internal control system,
- uses an accounting system
that provides accurate, complete and reliable information in a timely manner;
- is subject to an
independent external audit, performed in accordance with internationally
accepted auditing standards by an audit; service functionally independent of
the entity or person concerned;
- applies appropriate rules
and procedures for procurement and grants;
- ensures the ex post
publication of information on recipients; and
- ensures a reasonable
protection of personal data.
Award procedures
6.2 As regards tire EU
Contribution to a Parmer managed pool fund, the managing entity within the Partner
shall carry out the tasks in accordance with its own procedures and standard
documents for the award of procurement and grant contracts, or with those
agreed upon among the donors.
Implementation
6.3 As regards the EU
Contribution to a Partner managed pool fund, in addition to the rights and
obligations already laid down in these General Conditions, further rules
detailed in Annex V to the Financing Agreement shall apply to the Partner for
the implementation of the EU Contribution to the pool fund.
Article
7 - Publication of information on procurement and grant contracts by the
Partner
7.1 The Partner undertakes
to publish each year in a dedicated and easily accessible place of its internet
site, for each procurement and grant contract for which it is contracting
authority under the imprest component of the programme estimate referred to in
Article 5 and the pool funds referred to in Article 6, its nature and purpose,
the name and locality of the contractor (contractors in case of a consortium)
or grant beneficiary (grant beneficiaries in case of a multi- beneficiary
grant), as well as the amount of the contract.
The locality of a natural
person shall be a region at NUTS2 level. The locality of a legal person shall
be its address.
If such internet publication
is impossible, the information shall be published by any other appropriate
means, including the official journal of tile Partner.
Article 6 of the special
Conditions shall stipulate the location, on the internet or otherwise, of the
place of publication; reference shall be made to this location in the dedicated
place of the internet site of the Commission.
7.2 Education support and
direct financial support to natural persons most in need shall be published
anonymously and in an accumulated manner by category of expenditure.
Names of natural persons shall
be replaced by "natural person” two years after publication. The name of a
legal entity containing that of a natural person involved in this entity shall
be treated as a natural person's name.
Publication of names of
natural persons shall be waived if such publication risks violating their
fundamental rights of damaging their commercial interests.
The Partner shall present a
list of data to be published on natural persons with any justifications for
proposed waivers of publication to the Commission which must grant prior authorisation
to this list. Where necessary, the Commission shall complete
the locality of the natural person limited to a region at NUTS2 level.
7.3 Publication of the
procurement and grant contracts concluded (i.e. signed by the Partner and the
contractor or grant beneficiary) during the reporting period shall take place
within six months following the date for submitting the report pursuant to
Article 6 of Special Conditions.
7.4 Publication of
contracts may be waived if such publication risks harming the commercial
interests of contractors or grant beneficiaries. The Partner shall present a
list with such justifications to the Commission which must grant prior
authorisation to such publication waiver.
7.5 Where the Commission
carries out payments to contractors or grant beneficiaries pursuant to Article
4, it shall ensure the publication of information on procurement contracts and
grant contracts according to its rules.
Article
8 - Recovery of funds
8.1 The Partner shall take
any appropriate measures to recover the funds unduly paid.
Amounts unduly paid and
recovered by the Partner, amounts from financial guarantees lodged on the basis
of procurement and grant award procedures, amounts from financial penalties
imposed by the Partner, as well as damages awarded to the Partner shall be
returned to the Commission.
8.2 Without prejudice to
the above responsibility of the Partner to recover funds unduly paid, the
Partner agrees that the Commission may, in accordance with the provisions of
the Financial Regulation applicable and this Financing Agreement, formally
establish an amount as being unduly paid under procurement contracts and grant
contracts financed under Part One and proceed to its recovery by any means on
behalf of the Partner, including by offsetting the amount owed by the
contractor or grant beneficiary against any of its claims against the EU and by
forced recovery before the competent courts.
8.3 To this end, the Partner
shall provide to the Commission all the documentation and information
necessary. The Partner hereby empowers the Commission to carry out the recovery
in particular by calling on a guarantee of a contractor or grant beneficiary of
which the Partner is the contracting authority or by offsetting the funds to be
recovered against any amounts owed to the contractor or grant beneficiary by
the Partner as contracting authority and financed by the EU under this or
another Financing Agreement or by forced recovery before the competent courts.
8.4 The Commission shall inform
the Partner that the recovery proceedings have been initiated (including where
necessary before a national court).
8.5 Where the Partner is a
grant beneficiary of an entity with which the Commission concluded a
contribution agreement, the Commission may recover funds from the Partner which
are due to the entity but which the entity was not able to recover itself.
Article
9 - Financial claims under procurement and grant contracts
The Partner undertakes to
confer with the Commission before taking any decision concerning a request for
compensation made by a contractor or grant beneficiary and considered by the
Partner to be justified in whole or in part. The financial consequences may be
borne by the EU only where the Commission has given its prior authorisation.
Such prior authorisation is also required for any use of funds committed under
the present Financing Agreement to cover costs arising from disputes relating
to contracts.
Article
10 - Cost overruns and ways of financing them
10.1 Individual overruns of
the budget headings of the activities implemented by the Partner shall be dealt
with by reallocating fluids within the overall budget, in accordance with
Article 25 of these General Conditions.
10.2 Wherever there is a
risk of overrunning the amount foreseen for the activity implemented by the
Partner, the Partner shall immediately inform the Commission and seek its prior
authorisation for the corrective activities planned to cover the overrun,
proposing either to scale down the activities or to draw on its own or other
non-EU resources.
10.3 If the activities
cannot be scaled down, or if the overrun cannot be covered either by the
Partner's own resources or other resources, the Commission may, at the
Partner's duly substantiated request, decide to grant additional EU financing.
Should the Commission take such a decision, the excess costs shall be financed,
without prejudice to the relevant EU rules and procedures, by the release of an
additional financial contribution to be set by the Commission. This Financing
Agreement shall be amended accordingly.
Part Two: Provisions Applicable to Budget Support
Article
11 - Policy dialogue
The Partner and the EU
commit to engage in a regular constructive dialogue at the appropriate level on
the implementation of this Financing Agreement
Where the Partner is an ACP
State and this action is financed under the EDF pursuant to Article 1.1 of the
Special Conditions, this dialogue may form a part of the broader political
dialogue provided for in Article 8 of the ACP-EC Partnership Agreement.
Article
12 - Verification of conditions and disbursement
12.1. The Commission shall
verify the conditions for the payment of the tranches of the budget support
component, as identified in Annex I (Technical and Administrative Provisions).
Where the Commission
concludes that the conditions for payment are not fulfilled, it shall inform
the Partner thereof without undue delay.
12.2. Disbursement requests
submitted by the Partner shall be eligible for EU financing provided that they are
in accordance with the provisions set out in Annex I (Technical and
Administrative Provisions) and that they are submitted during the operational
implementation period.
12.3. The Partner shall
apply its national foreign exchange regulations in a nondiscriminatory manner
to all disbursements of the budget support component.
Article
13 - Transparency of budget support
The Partner hereby agrees to
the publication by the Commission, of this Financing Agreement and any
amendment thereof, including by electronic means, and of such basic information
on the budget support which the Commission deems appropriate. Such publication
shall not contain any data in violation of the EU laws applicable to the
protection of personal data.
Article
14 - Recovery of budget support
All or part of the budget
support disbursements may be recovered by the Commission, with due respect to
the principle of proportionality, if the Commission establishes that payment
has been vitiated by a serious irregularity attributable to the Partner, in
particular if the Partner provided unreliable or incorrect information, or if
corruption or fraud was involved.
Part Three: Provisions Applicable to this Action as a Whole,
Irrespective of the Management Mode
Article
15 - Execution period and contracting deadline
15.1 The execution period
of this Financing Agreement shall comprise two periods:
- an operational
implementation period, in which the operational activities of the action are carried
out. This period shall start on the entry into force of this Financing
Agreement or on the date stipulated in the Special Conditions and end with the
opening of the closure period.
- a closure period, during
which final audit and evaluation are carried out and contracts and the
programme estimate for the implementation of this Financing Agreement are
technically and financially closed. The duration of this period is stipulated
in Article 2.3 of the Special Conditions. It starts after the end of the
operational implementation period.
These periods shall be
reflected in the agreements to be concluded by the Partner and by the
Commission in the implementation of this Financing Agreement, in particular in
contribution agreements and procurement and grant contracts.
15.2 Costs related to the
operational activities shall be eligible for EU financing only if they have
been incurred dining the operational implementation period; the costs incurred
before the entry into force of this Financing Agreement shall not be eligible
for EU financing unless provided otherwise in Article 6 of the Special
Conditions. Costs related to final audits and evaluation, to closure activities
and operating costs referred to in Article 5.1 shall be eligible until the end
of the closure period.
15.3 Any balance remaining
from the EU contribution shall be automatically decommitted no later than six
months after the end of the execution period.
15.4 In exceptional and
duly substantiated cases, a request may be made for the extension of the
operational implementation period or the closure period, as well as
correlatively of the execution period. If agreed upon, the Financing Agreement
shall be amended accordingly.
15.5 Article 2 of these
General Conditions shall apply to procurement contracts, grant contracts and
contribution agreements awarded by the Commission as contracting authority with
the exception of the last subparagraph of Article 2.1.
Article
16 - Verifications and checks by the Commission, the European Anti-Fraud Office
(OLAF) and the European Court of Auditors
16-1 The Partner shall assist
and support the verifications and checks carried out by the Commission, OLAF
and the European Court of Auditors at their request.
The Partner agrees to the
Commission, OLAF and the European Court of Auditors conducting documentary and
on-the-spot controls on the use made of EU financing under the activities under
this Financing Agreement and carrying out a full audit, if necessary, on the
basis of supporting documents of accounts and accounting documents and any
other documents relating to the financing of the activities, throughout the
duration of this Financing Agreement and for five years from the end of the
execution period.
16.2 The Partner also
agrees that OLAF may carry out on-the-spot checks and verifications in
accordance with the procedures laid down by EU law for the protection of the EU's
financial interests against fraud and other irregularities.
To that end, the Partner
shall grant officials of the Commission, OLAF and the European Court of
Auditors and their authorised agents access to sites and premises at which
operations financed under this Financing Agreement are carried out, including
their computer systems, and to any documents and computerised data concerning
the technical and financial management of those operations, and to take every
appropriate measure to facilitate their work. Access by authorised agents of
the Commission, OLAF and the European Court of Auditors shall be granted on
conditions of strict confidentiality with regard to third parties, without
prejudice to public law obligations to which they are subject. Documents must
be accessible and filed in a manner permitting easy inspection, the Partner
being bound to inform the Commission, OLAF or the European Court of Auditors of
the exact location at which they are kept.
16.3 The checks and audits
described above shall also apply to contractors, grant beneficiaries,
organisations having signed contribution agreements and subcontractors who have
received EU financing.
16.4 The Partner shall be
notified of on the spot missions by agents appointed by the Commission, OLAF or
the European Court of Auditors.
Article
17 - Tasks of the Partner in fighting irregularities, fraud and corruption
17.1 The Partner shall
immediately inform the Commission of any element brought to its attention which
arouses suspicions of irregularities, fraud or corruption and of any measure
taken or planned to deal with them.
17.2 The Partner shall
ensure and check regularly that the actions financed from the budget are effectively
carried out and implemented correctly. It shall take appropriate measures to
prevent, detect and correct irregularities and fraud and where necessary, bring
prosecutions and recover funds unduly paid.
"Irregularity"
shall mean any infringement of this Financing Agreement, implementing contracts
and programme estimate or of EU law resulting from an act or omission by anyone
who has, or would have, the effect of prejudicing the funds of the EU, either
by reducing or losing revenue owed to the EU, or by an unjustified item of expenditure.
"Fraud" shall mean
any intentional act or omission concerning:
- the use or presentation of
false, incorrect or incomplete, statements or documents which has as its effect
the misappropriation or wrongful retention of funds from the general budget of
the EU or the EDF;
- non-disclosure of
information in violation of a specific obligation, with the same effect;
- the misapplication of such
funds for purposes other than those for which they are originally granted.
17.3 The Partner undertakes
to take every appropriate measure to prevent, detect and punish any practices
of active or passive corruption during the implementation of the Financing
Agreement.
"Passive
corruption" shall mean the deliberate action of an official, who, directly
or through an intermediary, requests or receives advantages of any kind
whatsoever, for himself or for a third party, or accepts a promise of such an
advantage, to act or refrain from acting in accordance with his duty or in the
exercise of his functions in breach of his official duties, which has, or would
have, the effect of harming the EU's financial interests.
"Active
corruption" shall mean the deliberate action of whosoever promises or
gives, directly or through an intermediary, an advantage of any kind whatsoever
to an official, for himself or for a third party, to act or refrain from acting
in accordance with his duty or in the exercise of his functions in breach of
his official duties, which has, or would have, the effect of harming the EU's
financial interests.
- 17.4 If the Parmer does
not take appropriate measures to prevent fraud, irregularities and corruption,
the Commission may adopt precautionary measures including the suspension of
this Financing Agreement.
Article
18 - Suspension of payments
18.1 Without prejudice to
the suspension or termination of this Financing Agreement according to Articles
26 and 27, respectively, the Commission may suspend payments partially or
fully, if:
a) the Commission has
established or has serious concerns that, on the basis of information it
received, and needs to verify, the Partner has committed substantial errors,
irregularities or fraud in the procurement and grant award procedure or in the
implementation of the action, or the Partner has failed to comply with its
obligations under this Financing Agreement, including obligations regarding the
implementation of the Communication and Visibility plan;
b) the Commission has
established or has serious concerns that, on the basis of information it received,
and needs to verify, the Partner has committed systemic or recurrent errors,
irregularities, fraud or breach of obligations under this or other Financing
Agreements, provided that those errors, irregularities, fraud or breach of
obligations have a material impact on the implementation on this Financing
Agreement or call into question the reliability of the Partner's internal
control system or the legality and regularity of the underlying expenditure;
c) the Commission suspects
that the Partner committed substantial errors, irregularities, fraud or breach
of obligations in the procurement and grant award procedure or in the implementation
of the action and needs to verify whether they have occurred.
d) it is necessary to
prevent significant damage to the financial interests of the EU.
18.2 The Commission shall
immediately inform the Partner about the suspension of payments and of the
reasons for this suspension.
18.3 The suspension of payments
shall have the effect of suspending payment time-limits for any payment request
pending.
18.4 In order to resume
payments the Partner shall endeavour to remedy the situation leading to the suspension
as soon as possible and shall inform the Commission of any progress made in
this respect. The Commission shall, as soon as it considers that the conditions
for resuming payments have been met, inform the Partner thereof.
Article
19 - Allocation of funds recovered by the Commission to the action
Where the action is financed
under the EDF, amounts unduly paid and recovered by the Commission, amounts
from financial guarantees lodged on the basis of procurement and grant award
procedures, amounts from financial penalties imposed, as well as damages
awarded to the Commission shall be allocated to this action.
Article
20 - Right of establishment and residence
20.1 Where justified by the
nature of the procurement contract, grant contract or contribution agreement,
the Partner shall entitle natural and legal persons participating in
invitations to tender for works, supply or service contracts or calls for
proposals and organisations expected to sign contribution agreements with a
provisional right of establishment and residence in the Partner's
territory(ies). This right shall remain valid for one month after the contract
is awarded.
20.2 The Partner shall also
entitle procurement contractors, grant beneficiaries, organisations having
signed contribution agreements and natural persons whose services are required
for the performance of this action and members of their families with similar
rights during the implementation of the action.
Article
21 - Tax and customs provisions and foreign exchange arrangements
21.1 The Partner shall
apply to procurement contracts, grants contracts and contribution agreements
financed by the EU the most favoured tax and customs arrangements applied to
States or international development organisations with which it has relations.
Where the Partner is an ACP
State, account shall not be taken of arrangements applied
by it to the other ACP States or to other developing
countries for the purpose of determining the most- favoured-State treatment.
21.2 Where a Framework
Agreement is applicable, which includes more detailed provisions on this
subject, these provisions shall apply as well.
Article
22 - Confidentiality
22.1 The Partner agrees
that documents and information related to the Action and held by any entity may
be forwarded to the Commission, by that entity, for the sole purpose of
implementing this or another Financing Agreement.
22.2 Without prejudice to
Article 16 of these General Conditions, the Partner and the Commission shall
preserve the confidentiality of any document, information or other material
directly related to the implementation of this Financing Agreement that is
classified as confidential.
22.3 The Parties shall
obtain each other’s prior written consent before publicly disclosing such
information.
22.4 The Parties shall
remain bound by the confidentiality until five years after the end of the
execution period.
22.5 The Partner shall also
comply with the obligations under Article 1.7 where the Commission provides
personal data to the Partner, for example in the context of procedures and
contracts managed by the Commission.
Article
23 - Use of studies
The contract related to any
study financed under this Financing Agreement shall include the right for the
Partner and for the Commission to use tire study, to publish it and to disclose
it to third parties.
Article
24 - Consultation between the Partner and the Commission
24.1 The Partner and the
Commission shall consult each other before taking any dispute relating to the
implementation or interpretation of this Financing Agreement further pursuant
to Article 28 of these General Conditions.
24.2 Where the Commission
becomes aware of problems in carrying out procedures relating to management of
this Financing Agreement, it shall establish all necessary contacts with the Partner
to remedy the situation and take any steps that are necessary.
24.3 The consultation may
lead to the amendment, suspension or termination of this Financing Agreement.
24.4 The Commission shall
regularly inform the Partner of the implementation of activities described in
Annex I which do not fall under Parts One and Two of these General Conditions.
Article
25 - Amendment of this Financing Agreement
25.1 Any amendment of this
Financing Agreement shall be made in writing, including an exchange of letters.
25.2 If the request for an
amendment comes from the Partner, the latter shall submit that request to the
Commission at least three months before the amendment is intended to enter into
force, except in cases which are duly substantiated by the Partner and accepted
by the Commission. In the exceptional cases of an adjustment of the objectives
of the action and/or an increase in the EU contribution, such request shall be
submitted at least six months before the amendment is intended to enter into
force.
25.3 If the adjustment both
does not significantly affect the objectives of the activity implemented
pursuant to Part One of these General Conditions, and if it concerns matters of
detail which do not affect the technical solution adopted, and if it does not
include the reallocation of funds, or if it concerns reallocations of funds for
an amount equivalent to the amount of the contingency reserve, the Partner
shall inform the Commission of the adjustment and its justification in writing
as soon as possible and may apply that adjustment.
25.4 The use of the
contingency reserve provided for an action shall be subject to the Commission’s
prior written approval.
25.5 Where the Commission
considers that the Partner ceases to perform satisfactorily the tasks entrusted
pursuant to Article 1.1 of these General Conditions and without prejudice to
Articles 26 and 27 of these General Conditions, the Commission may decide to
retake the tasks entrusted from the Partner in order to continue the
implementation of the activities on behalf of the Partner after informing the
latter in writing.
Article
26 - Suspension of this Financing Agreement
26.1 The Financing
Agreement may be suspended in the following cases:
- The Commission may suspend
the implementation of this Financing Agreement if the Partner breaches an
obligation under this Financing Agreement.
- The Commission may suspend
the implementation of this Financing Agreement if the Partner breaches any
obligation set under the procedures and standard documents referred to in
Articles 1, 4, 5 and 6 of these General Conditions.
- The Commission may suspend
this Financing Agreement if the Partner fails to observe the principles of
democracy, the rule of law or good governance, or respect for human rights and fundamental
freedoms or for internationally recognised nuclear safety standards, in serious
cases of corruption or if the Partner is guilty of grave professional
misconduct proven by any justified means. Grave professional misconduct is to
be understood as any of the following:
• a violation of applicable
laws or regulations or ethical standards of the profession to which a person or
entity belongs, or
• any wrongful conduct of a
person or entity which has an impact on its professional credibility where such
conduct denotes wrongful intent or gross negligence.
- This Financing Agreement
may be suspended in cases of force majeure, as defined below. "Force majeure"
shall mean any unforeseeable and exceptional situation or event beyond the
parties' control which prevents either of them from fulfilling any of their
obligations, not attributable to error or negligence on their part (or the part
of their contractors, agents or employees) and proves insurmountable in spite
of all due diligence. Defects in equipment or material or delays in making them
available, labour disputes, strikes or financial difficulties cannot be invoked
as force majeure. A party shall not be held in breach of its obligations if it
is prevented from fulfilling them by a case of force majeure of which the other
party is duly informed. A party faced with force majeure shall inform, the
other party without delay, stating the nature, probable duration and
foreseeable effects of the problem, and take any measure to minimise possible
damage. Neither of the Parties shall be held liable for breach of its
obligations under this Financing Agreement if it is prevented from fulfilling
them by force majeure, provided it takes measures to minimise any possible
damage.
- In cases such as crisis or
change of position at national level (e.g. on its policy priorities).
26.2 The Commission may
suspend this Financing Agreement without prior notice.
26.3 The Commission may
take any appropriate precautionary measure before suspension takes place.
26.4 When the suspension is
notified, the consequences for the on-going procurement and grant contacts,
contribution agreements and programme estirnate shall be indicated.
26.5 A suspension of this
Financing Agreement is without prejudice to the suspension of payments and
termination of this Financing Agreement by the Commission in accordance with
Article 18 and 27 of the General Conditions.
26.6 The parties shall
resume the implementation of the Financing Agreement once the conditions allow
with the prior written approval of the Commission. This is without prejudice to
any amendments of this Financing Agreement which may be necessary to adapt the
action to the new implementing conditions, including, if possible, the
extension of the operational implementation period, or the termination of this
Financing Agreement in accordance with Article 27.
Article
27 - Termination of this Financing Agreement
27.1. If the issues which led
to the suspension of this Financing Agreement have not been resolved within a
maximum period of 180 days, either party may terminate this Financing Agreement
at 30 days' notice.
27.2. Without prejudice to
Article 27.1 above, if at any time, the Commission believes that the purpose of
this Financing Agreement can no longer effectively or appropriately performed,
this Financing Agreement may be terminated by serving (30) thirty days written
motivated notice.
27.3. This Financing
Agreement shall be automatically terminated, if no implementing contract has
been signed within the deadlines of Article 2.
27.4. The consequences of
such terminations on the ongoing activities may be analysed, where relevant,
and determined on a case by case basis.
Article
28 - Dispute settlement arrangements
28.1 Any dispute concerning
this Financing Agreement which cannot be settled within a six-month period by
the consultations between the parties provided for in Article 24 of these
General Conditions may be settled by arbitration at one of the parties'
request.
Where the Partner is an ACP
State or an ACP regional body or organisation and this action is financed under
the EDF, the dispute shall be submitted, prior to arbitration and after the
consultations provided for in Article 24 of these General Conditions, to the
ACP-EC Council of Ministers, or, between its meetings, to the ACP-EC Committee
of Ambassadors, pursuant to Article 98 of the ACP-EC Partnership Agreement. If
the Council or Committee does not succeed in settling the dispute, either party
may request settlement of the dispute by arbitration in accordance with
Articles 28.2, 28.3 and 28.4.
28.2 Each party shall
designate an arbitrator within 30 days of the request for arbitration. Failing
that, either party may ask the Secretary-General of the Permanent Court of
Arbitration (The Hague) to designate a second arbitrator. The two arbitrators
shall in their turn designate a third arbitrator within 30 days. Failing that,
either party may ask the Secretary-General of the Permanent Court of Arbitration
to designate the third arbitrator.
28.3 The procedure laid
down in the Permanent Court of Arbitration Optional Rules for Arbitration
Involving International Organisations and States shall apply. The arbitrators'
decisions shall be taken by a majority within a period of three months.
28.4 Each party shall be
bound to take the measures necessary for the application of the arbitrators'
decision.