Ref. Ares(2012)634950 - 29/05/2012
Ref. Ares(2013)3147917 - 01/10/2013
Limited Distribution1
IAS Audit Report
Final Audit Report
on Procurement within
the Fundamental Rights Agency
IAS.A-2012-W FRA-001
22 May 2012
This IAS Audit Report is addressed to:
Mr Morten Kjaerum, Director, FRA
Ms Ilze Brands Kehris, Chairperson of the Management Board, FRA
with copies to
Mr Constantinos Manolopoulos, Head of the Administration, Contact Person, FRA
Mr Xavier Catala, Finance Manager, FRA
Mr Manfred Kraff , Director CEAD Group, ECA
1 This IAS Audit Report is covered by a Marking provided for by Commission Decision 2001/844/EC, which
imposes a constraint on its use and distribution. It is destined exclusively for the Services to which it has
been expressly addressed and its contents should not be communicated to other Services or third parties
without the express written consent of the Internal Audit Service. Audit Reports may contain personal data
as defined in Article 2 of Regulation 2001/45 and in this context, recipients are subject to the
responsibilities defined in this Article. Should this report inadvertently come into your possession when
you are not a designated recipient it should please immediately be given to the Security Officer of your
Service or that of the IAS.
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ENGAGEMENT TEAM
[Information deleted]
Team Leader
[Signed]
[Information deleted]
Auditor [Signed]
[Information deleted]
Auditor [Signed]
AUDIT MANAGER
Audit Manager
[Information deleted]
[Signed]
DIRECTOR
Agnieszka Kaźmierczak
Certified Internal Auditor (CIA ®
)
Director
[Signed]
Certified Government Auditing
Professional (CGAP ®
)
Hereby, we would like to thank all staff members of the Agency who participated in this
audit for their kind and constructive co-operation.
2
link to page 4 link to page 4 link to page 5 link to page 6 link to page 6 link to page 6 link to page 6 link to page 7 link to page 8 link to page 15 link to page 16 link to page 17
IAS Audit on Procurement in FRA - Final Report
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Table of Contents
1.
EXECUTIVE SUMMARY........................................................................................................................ 4
1.1.
OBJECTIVE AND SCOPE...................................................................................................................... 4
1.2.
AUDIT OPINION AND MAJOR FINDINGS / OBSERVATIONS................................................................ 4
1.3.
GOOD PRACTICES............................................................................................................................... 5
2.
FULL REPORT ......................................................................................................................................... 6
2.1.
INTRODUCTION .................................................................................................................................. 6
2.1.1.
Reason for the Engagement ........................................................................................................... 6
2.1.2.
Description of Audited Activity/Process ........................................................................................ 6
2.1.3.
Key Figures.................................................................................................................................... 7
2.2.
MAJOR OBSERVATIONS AND RECOMMENDATIONS .......................................................................... 8
ANNEX 1: METHODOLOGY ......................................................................................................................... 15
ANNEX 2: COMMENTS FROM THE AGENCY ......................................................................................... 16
ANNEX 3: SAMPLE OF FRA PUBLIC PROCUREMENT PROCEDURES............................................. 17
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1. EXECUTIVE SUMMARY
1.1.
Objective and Scope2
This report summarises the results of the audit in the Fundamental Right Agency,
hereafter called "Agency" or "FRA".
The objective of the audit engagement was to assess and provide an independent
assurance on the adequate design and effective application of the internal control system
related to the procurement process.
The scope of the audit covered the following activities and related processes:
A. The appropriateness and effectiveness of controls for planning, implementation
and monitoring of the procurement process;
B. The compliance of the procurement procedures with the provisions of the
Financial Regulation and its Implementing Rules;
C. The clear and adequate allocation of roles and responsibilities in the procurement
process.
The audit scope did not include the contracts execution or any of the phases subsequent
to the signature of the contract, such as implementation of the contracts, pre-financing,
interim payments, delivery of services or goods procured, and contract litigation.
1.2.
Audit Opinion and Major Findings / Observations
Based on the results of our audit, as described in the objective and scope of the audit
engagement, we believe that the internal control system in place
provides reasonable
assurance regarding the achievement of the objectives set up for the procurement process
except for the following two issues :
1. The outcome of the review of six procurement files revealed weaknesses in the chain
of custody for the documentation of the procurement process due to the absence of an
adequate document management policy and relevant filing plans.
This entails the risk of non-compliance of the Agency with the art. 493 of the
Implementing Rules on the Financial Regulation and consequently might impair the
authorising officer to timely reconcile the decision-making process that lead to the award
of the contracts.
The above finding lead to recommend to the Agency to adopt a comprehensive document
management policy that ensures documenting in full procurement processes (rec. N°3).
2 For the audit methodology, see Annex 1.
3 Art. 49 - Keeping of supporting documents by Authorising Officers
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2. The functions of the actors for the Procurement process (Senior Procurement officer,
Chair of Evaluation Committee, Authorising Officer functions) are not fully segregated.
This might lead to possible lack of clarity in the roles and responsibilities of the actors
intervening in the procurement process and consequently a lack of accountability of the
actors and ineffective controls.
Therefore, it is recommended that the checks prescribed in step 160 of the FRA
Procurement Procedure be re-designed to ensure applying the principle of segregation of
duties between SPO and Chair of the Committee and the accountability of the
Authorising Officer (rec. N°8).
1.3.
Good practices
The IT application "Tender Contract Maker (TCM)" developed by the Agency to
generate standard documentation for the procurement process ensures consistency of
contractual records and their format across the different departments initiating the
process.
The Budget module of the IT application "MATRIX" used for the Agency project
management has been coupled with the accounting records retrieved from ABAC
allowing a daily on-line update of the budgetary implementation.
Team Leader
Audit Manager
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2. FULL REPORT
2.1.
Introduction
2.1.1.
Reason for the Engagement
The choice of the audit topic ("procurement") followed the risk assessment carried out by
the IAS in the FRA in 2009, and the subsequent establishment of a strategic audit plan for
the period 2010 – 2012.
The procurement area is sensitive and important for the implementation of the majority of
FRA objectives, particularly as regards the core research activities.
In addition, procurement activities on the two main research areas are to be coordinated
with the ones leading to communication and dissemination of the researches' results thus
appropriate planning and monitoring of the process is of paramount importance for the
achievement of the Agency's objectives.
2.1.2.
Description of Audited Activity/Process
The Council Regulation (EC) n. 168/2007 establishing the European Union Agency for
Fundamental rights provides in art. 2 and 4 respectively, the objective and the tasks
entrusted to the Agency.
The Agency shall, as a core task, collect, record, analyse and disseminate relevant,
objective, reliable and comparable information and data in relation to fundamental rights
matters (Art.2 "Objective", Art. 4 "Tasks").
To accomplish any of the tasks entrusted, the Agency may enter in contractual relations,
in particular subcontracting, and may also award grants, to promote appropriate
cooperation and join ventures, in particular with national and international organisations
(Art.6 "Working arrangements").
The legal framework for entering in contractual relations in the procurement area is
established according to Art. 74 of the Commission Regulation (EC, EURATOM) No
2343/2002 of 19 November 2002 on the Framework Financial Regulation for the bodies
referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 (FR) and
in accordance with the Financial Rules of the Agency entered into force on 01.01.2009.
Therefore the procurement process implemented by FRA, shall apply the provisions of
the general Financial Regulation (FR) and of the Commission Regulation (EC, Euratom)
No 2342/2002 (IR).
As per the Agency procurement procedure :
"the overall objective of the procurement
process is to ensure , whilst managing the risks associated with procurement, that the
Agency purchases goods or services in due time, in appropriate quality and quantity, and
at the best price."
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The Agency procurement procedure is described in the document PR.PROC.001-01 duly
adopted by the Agency Director on 21.12.2010 that includes 14
Related Forms
(templates) and six TCM generated forms.
The description of the process distinguishes the procedures below and above a threshold
fixed at 60,000 €. In the procedure, the seven main phases in the procurement process4
(from procurement planning until awarding and contract signature) have been
documented with a detailed description of actions and responsibilities.
2.1.3. Key
Figures
Financial years 2011 and 2012 5
Expenditure
Year 2012
Year 2011
Budget
Budget
Title Appropriations
Amount (Euro)
Amount (Euro)
1
Staff
10 887 000
10 190 700
2
Administrative Expenditure
1 938 020
2 549 000
3
Operating Expenditure
7 551 000
7 440 320
Total
20 376 020
20 180 020
Staff according to the FRA Establishment Plan
Category 2012
2011
AD 47
44
AST 28
28
National experts
9
9
Contract agents
28
25
Total
112 106
4 Procurement Planning; Request for a call for tender; Preparation of the Tender Dossier; Questions and
Answers with Potential Bidders; Opening and Evaluation, Awarding; Contract Signature. (FRA Procurement
Procedure PR.PROC.001-01, page 5.)
5 Statement of revenue and expenditure of the European Union Agency for Fundamental Rights for the financial
year 2011 and 2012
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IAS analysis of negotiated procedure6
The total number of the contracts signed in 2011 for negotiated procedures (all below
60 000 €) amounts to 172 for a total contract value of 1 111 873, 42 € as per the
Summary Table below:
Nr.
Type of procedure
Total value (€)
Contracts
130
Single tender procedures (all below 5 000 €)
229 565,157
24 Negotiated
procedure
364
848,40
8
1
Direct treaty procedure due to urgency
4 507,09 9
13
Negotiated procedures stemming from the award of
190 435
relevant framework contracts
1
Direct treaty for additional services linked to the
30 091 €;10
main contract
3
Negotiated procedures stemming from Service Level
292 426,80
Agreements with other institutions
172
Total
1 111 873,42
2.2.
Major Observations and Recommendations
A. On the appropriateness and effectiveness of controls for planning, implementation
and monitoring of the procurement process:
PLANNING AND MONITORING THE PROCUREMENT PROCESS
BACKGROUND INFORMATION
According to the Director decision, 3-DIR-2009 of 27 November 2009 the Agency follows
an integrated project management approach. The FRA Project Life Cycle can be summarised
with the following seven phases: preparation for the decision, inception, formulation,
production, implementation, impact assessment and lesson learned.
The Agency has developed an IT application for the planning, implementation and
monitoring of the entire project life cycle (MATRIX) including the planning, monitoring and
6 Based on the Excel spread sheet provided by the Agency (e-mail dated 28/03/2012)
7 The highest number (8) of single tenders awarded to the same supplier amounts to 9,052 € for event/ catering.
8 For the negotiated procedures between 5,000 € and 25 000 € the Agency confirm to always invite at least three
bidders, as per articles 91 of FR and 129.2 IR
9 Art. 126.1.c of IR
10 Art. 126.e of IR
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implementation of the procurement procedures.
In order to gain experience with the MATRIX working methodology with decision 1-DIR-
2010 dated 11 February 2010 the Director selected a list of projects under the Annual
Working programme 2010, which should receive particularly focused attention.
FINDINGS
The IAS analysis of the functionalities of MATRIX, the Agency's records available for the
set of projects mentioned under the decision of the Director nr. 1-DIR-2010, and the
information for the monitoring and planning of procurement process provided by the Agency
during the fieldwork, revealed that in the implementation of the foreseen controls:
1. As concerns procurement plans and monitoring of their implementation, the
information is currently managed by means of Excel spreadsheets not embedded in
MATRIX.
2. The project records, relevant data and milestones for the procurement process are not
consistently recorded in MATRIX.
CURRENT RISK(S)
The lack of availability of integrated and consistent data in the IT application MATRIX does
not allow providing a complete and reliable overview of the status of the projects and in
particular of the procurement process possibly hindering the achievement of an efficient and
effective implementation of the Agency projects.
RECOMMENDATIONS
Recommendation N° 1 –
Embed the procurement
planning and monitoring in
Important
MATRIX
The procurement planning and monitoring should be fully embedded in the project
management application MATRIX, which is becoming essential for the Agency's project
management and it should allow the production of reliable projects status implementation
reports.
Recommendation N° 2 –
Established mandatory
projects records, milestones
Important
and deadlines to be recorded
in MATRIX
A set of mandatory project data should be consistently recorded in MATRIX to provide the
Agency with a reliable overview of the projects status. This information should enable
planning and execution of projects/procurement activities and consequently matching the
Agency's resources (e.g. identifying critical paths, avoiding a posteriori commitments,
tracking heavy workload periods and allowing timely implementation of corrective actions).
B. On the compliance of the procurement procedures with the provisions of the Financial
Regulation and its Implementing Rules:
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MANAGEMENT OF PROCUREMENT DOCUMENTATION
BACKGROUND INFORMATION
According art. 49 of the Implementing Rules to the Financial Regulation:
"The management systems and procedures concerning the keeping of original supporting
documents shall provide for:
(a) such documents to be numbered;
(b) such documents to be dated;
(c) registers, which may be computerised, to be kept identifying the exact location of such
documents;
(d) such documents to be kept for at least five years from the date on which the European
Parliament grants discharge for the budgetary year to which the documents relate."
The revised Internal Control Standards for Effective Management adopted by the Agency's
Director on 14/12/2009 with decision 2009/6 provides for the Document Management that:
"Appropriate processes and procedures are in place to ensure that the Agency's document
management is secure, efficient (in particular as regards retrieving appropriate
information) and complies with applicable legislation".
It should be noted that on 25 July 2011 the Agency's Director adopted the decision nr.
ADMIN.ICTF05 related to the registration of incoming and outgoing mail defining in art. 4
the documents to be registered.
FINDING
Since a document management policy has not yet been adopted by the Agency, IAS
analysis of the hard-copy documents and electronic files11 for the six procurement
procedures confirmed that :
1. The files sampled do not follow a coherent and complete filing plan, each of the
official hard-copy procurement files had different level of accuracy in the
registration of the relevant documents12;
2. The files sampled lack of consistency between hard-copy files and e-format files;
for some of the procedures sampled, not all the documents available in the
electronic were also available in hard copies;
3. In the file sampled the documentation was not duly filed and registered13 especially
for what concerns the exchange of correspondence between the tenderer/candidates
and the Agency (requests for the terms of reference, requests for clarifications, letter
informing about the outcome of the procedures etc.).
11 Stored on the Agency local server drive L: /
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CURRENT RISK(S)
Inadequate filing and registration of the documentation entails the risk of non-
compliance of the Agency with the art. 4914 of the IR and consequently it might impair
the Authorising Officer to timely reconcile the decision-making process that leads to the
award of the contracts, especially in case of candidates challenging the award decisions,
lodging an appeal and/or starting litigations and possible related pecuniary
compensation. This latter might expose the Agency also to reputational risks.
RECOMMENDATION
Recommendation N° 3 –
Adopt the Agency document
Very important
management policy
The Agency should adopt a comprehensive document management policy that ensures
documenting in full procurement processes.
Recommendation N° 4 –
Ensure coherence and
Important
completeness of files
Regardless of their format (hard copy or electronic), documents should be filed in one
single official procurement file to ensure coherence and completeness of the documentation
as well as an appropriate chain of custody.
Recommendation N° 5 –
Ensure adequate registration of
Important
correspondence
The Agency correspondence should be duly dated and adequately recorded in the registry.
In particular, the registration of correspondence with candidates/tenderers should be
complete, including possible requests for clarification of technical/financial offers sent by
the evaluation committee. The registration should ensure clarity concerning document
identification, author, and its receipt and/or dispatch.
C. On the clear and adequate allocation of roles and responsibilities in the procurement
process:
DECISION-MAKING PROCESS
BACKGROUND INFORMATION
The request for a call for tender is initiated by the relevant Head of Department based on
the Agency's Annual Work Programme, Annex IV, Financing Decision. The Head of
12 According to FRA Procurement Procedure PR.PROC.001-01, the records in a procurement file include
Technical specifications, Invitation letters, Appointment of opening committee, Appointment of evaluation
committee, Offers received, Opening report, Evaluation report, Evaluation grids, Award decision/ Letter to
successful tendereds, No-letter to unsuccessful tenderers, Letter for request of clarification, Signed Contract.
13 For examples: documents with different content registered under the same number, documents not dated,
handwritten corrections not duly initialled, or cases of unregistered documents that according to art. 4 of the
Director's decision on the registration of incoming and outgoing mail of 25.07.2011 should be registered.
14 Art. 49 - Keeping of supporting documents by authorising officers
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Department, having identified the needs and estimated the value of the services/goods to be
purchased, addresses to the Head of the Administration a detailed explanatory note
containing the justification for procuring the activity.
At this stage, the Senior Procurement Officer reviews the documentation for all
procurement projects including the technical specifications and convenes the meeting(s) of
the Steering Committee (composed of the Head of the Administration, the Finance
Manager, the Accountant, Quality Manager, and Budget Officer). According to the FRA
Procedure, the Steering Committee performs a top-level check15 of the technical
specifications to ensure they are adequately structured, with no ambiguity or overlap
between award and selection criteria.
Furthermore, it should be noted that during the evaluation phase, the procurement
procedure foresees that the Evaluation Committee signs the report and forwards it to the
Senior Procurement Officer who checks the outcome consistency and completion, and
endorses the evaluation report before submitting the report to the Authorising Officer16.
FINDING
The analysis of the six sampled procurement files and the information received during the
meetings with key actors of the process revealed that :
1. The explanatory notes containing the justification of the needs, the estimation of the
contract value and having attached the technical specifications varies in form and
content between the sampled procedures. In the implementation of this control
measure, for three files, 17 the initial estimation of the value of the contract was not
adequately justified and in one case,18 the reasoning behind the increase of the
estimation was not duly recorded. Consultation with other institutions/services
performing similar researches, and possibly procuring similar surveys and studies
were not recorded.
2. The outcome of the work of the Steering Committee is in general not recorded and
consequently the department requesting the tender is not formally informed about
the outcome of the top-level check performed.
3. In the procurement procedures where the Senior Procurement Officer (SPO) is also
appointed as Chair of the Evaluation Committee, segregation of duties is not applied
since the SPO checks the work of the Evaluation Committee.
4. The deadline for the submission of the offers for an open procedure19 published in
the OJ series S was extended, but no evidence of the relevant Authorising Officer
approval was available in the file. In the same procedure, the file containing the
Terms of Reference posted on the Agency web site had to be also updated20 but no
evidence of the formal authorisation process for doing so was available in the
15 PR.PROC.001-01 -03B
16 See procedure 05- Opening and evaluation - Steps 150 and 160
17 Tender ref. Tender ref. D-SE-10-05, D-SE-11-T03 and F-SE-10-01-NP2
18 Tender ref. D-SE-10-05
19 OJs S161 dated 24.08.2011 Corrigendum 2001/S 161-264821
20 Pages 8 -14 were missing.
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documentation.
CURRENT RISK(S)
Inadequate assessment of the procurement needs may lead to an inefficient use of resources.
Lack of clarity in the roles and responsibilities of the actors intervening in the procurement
process may lead to a lack of accountability and ineffective controls.
Inadequate description of the process may lead to lack of accountability of the actors
involved, legal uncertainty , and inadequate traceability of the decision making process.
Recommendation N° 6 –
Improve Explanatory Notes for
the definition and justification of
Important
procurement needs
The content of the explanatory note should be improved in order to provide a
comprehensive justification for the procurement regarding the contract value. The
explanatory note should also record, when appropriate, consultations made with other
entities in order to avoid overlap and/or duplication of activities. Any subsequent change(s)
in the contract scope and/or estimated contract value must be duly justified, authorised and
recorded.
Recommendation N° 7–
Record outcome of the
Procurement Steering Committee
Important
meetings
The outcome of the Procurement Steering Committee's work should be adequately
recorded. The operational departments concerned by a specific procurement should be
appropriately informed.
Recommendation N° 8 –
Ensure safeguarding segregation
Very Important
of duties
Step N°16021 of the FRA Procurement Procedure should be updated to ensure the
safeguarding of the segregation of duties between the role of the SPO and of the Chair of
the Evaluation Committee on one side, and the responsibilities entrusted to the Authorising
Officer by the Financial Regulation with regard to the award of contracts22.
Recommendation N° 9 –
Describe corrective actions in the
Important
procurement process
The procurement process description should provide for corrective actions that might be
21 "The SPO checks the minutes and outcome, in particular considering the announced selection and award
criteria, the elements that had been requested under the technical proposal, the elements that had been requested
under the financial proposal, the correctness of the evaluation grids and related formulas". – PR.PROC.001-01,
page 5
22 Art. 60(4) of the Financial Regulation and Art. 47 of the Implementing Rules
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necessary. It should describe possible instances and the corresponding procedure to follow
(i.e. for issuing an
errata corrige concerning the terms of reference, an extension of the
deadline for the submissions of offers, an updates of ex-ante publicity notices on the
Agency's web- site).
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ANNEX 1: METHODOLOGY
A. Methodology
The audit was conducted in conformity with the IAS Guidelines and the Mutual Expectations
Paper and the
International Professional Practice Framework of Internal Auditing issued by
the Institute of Internal Auditors.
The Mutual Expectations Paper, describing the responsibilities of the IAS and the Agency's
in terms of the audit process, was attached as an annex to the Announcement Letter sent to
the Agency.
The Audit Manager and the Team Leader conducted preliminary meetings on 03 February
2012 in Vienna.
The audit fieldwork took place from 20 February 2012 to 24 February 2012, all observations
and recommendations relate to the situation as of that date.
Audit programmes and checklists were developed to evaluate the adequacy of the internal
control system and risk management processes of the items mentioned in the scope.
Interviews were held with key actors of the process working in the Administration
Department as well as in the Operational Department, together with supporting documents
and relevant information obtained from the Agency formed the basis for the evaluation of the
design of the internal control systems of the Agency.
Walk-through testing: Following the evaluation of the adequacy of the internal control
system, tests of transactions (sample of six procurement files – see Annex 3) were performed
in order to verify the application in practice of the internal controls. The sampling of the files
were made to cover accomplished procurement procedures launched during the years 2010-
2011 and implemented under different procurement legal basis (i.e. open and negotiated
procedures).
B. Follow-Up
In accordance with the IAS' follow-up policy, any
critical or
very important recommendations will be followed up through an audit follow-up engagement, normally
planned to be conducted within one year from the issuing of the final report. The
important or
desirable recommendations will usually be followed up through a desk review, based on
documentation provided by the Agency in Issue Track.
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ANNEX 2: COMMENTS FROM THE AGENCY
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ANNEX 3: SAMPLE OF FRA PUBLIC PROCUREMENT PROCEDURES
The sampling concerns open and negotiated procurement procedures in relation to
operational and administrative budget years 2010 and 2011.
1) Violence against women: An EU Survey
Service Contract ref. DS-E-11- T04 signed on 02.12.2011
Type of Procedure: Open
Contract value : 3 345 000 €
2) Access to Justice – a sociological study on cases of discrimination in the EU
Service Contract ref. D-SE-10-05 signed on 09.12.2010
Type of procedure: Open
Contract value : 410 000 €
3) Building Maintenance
Multiple Service Framework Contracts ref. F-SE-10-10-5 signed on 22.12.2010
Type of procedure: Open
Budget : 400 000 €
4) External evaluation
Service Contract ref. D-SE-11-T03 signed on 15.12.2011
Type of procedure : Open
Contract value : 245 700 €
5) European case Law Handbook on non-discrimination
Service Contract ref. D-SE-10-01 signed on 08.04.2010
Type of procedure: Negotiated
Contract value : 39 000 €
6) Executive Coaching Consultancy Services
Service Framework Contract ref. F-SE-10-01-NP2 signed on 20.12.2010
Type of Procedure : Negotiated Procedure
Budget : 25 000 €
17
Document Outline
- This IAS Audit Report is addressed to:
- Mr Morten Kjaerum, Director, FRA Ms Ilze Brands Kehris, Chairperson of the Management Board, FRA
- with copies to
- Mr Constantinos Manolopoulos, Head of the Administration, Contact Person, FRA Mr Xavier Catala, Finance Manager, FRA
- Mr Manfred Kraff , Director CEAD Group, ECA
- Table of Contents
- 1. EXECUTIVE SUMMARY
- 2. FULL REPORT
- ANNEX 1: METHODOLOGY
- ANNEX 2: COMMENTS FROM THE AGENCY
- ANNEX 3: SAMPLE OF FRA PUBLIC PROCUREMENT PROCEDURES