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Request for Specific Contracts under DIGIT-TM Framework contract

Daniel daniel a fait une demande de Accès à l'information à Informatique

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Dear Informatics,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

- DIGIT has awarded DIGIT TM framework contract (Tender DIGIT/A3/PO/2017/022) and as clarified during the tender (Question 101): page 20 of the Service Requirements: ”Additional levels of subcontracting (e.g. further subcontracting by subcontractors) is not authorised.”, except for freelancers (not companies) and/or identified subcontractors.

I hereby request: The list of Specific Contracts (e.g.: SC DIGITTM-xxxxx) that have been signed with companies that are not freelancers nor identified subcontractors, per DG. And for those Specific Contracts the electronic document of each Specific Contract.

In principle since it is not authorised there should not be no any case unless a dishonest behaviour be has taken place.

Thanks in advance,

Daniel.

Dear Informatics,

Just to clarify, the Specific Contracts (SC) are done between the EC and the consortium, but is the consortium signing a freelancer or a company (subcontracting with a not identified company) ? The requested list should only have those SC that have been signed with a non identified company. I understand that this is verified for each SC.

Yours faithfully,

Daniel.

Dear Informatics,

I would prefer to receive information in electronic form as it is my right under Regulation 1049/2001.

Yours faithfully,

Daniel

Informatique

Dear Mr. Daniel,

Thank you for your request for access to documents.
Unfortunately you have not indicated your postal address that is required for registering and handling your request in line with the procedural requirements. Please send us your full postal address at your earliest convenience. Pending your reply, we reserve the right to refuse the registration of your request.
You may, of course, use directly the electronic form for entering your request:
http://ec.europa.eu/transparency/regdoc/...

Best regards,
DIGIT ACCESS TO DOCUMENTS

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Dear Informatics,

Thanks for your message.

As, I have already requested, I would prefer to receive information in electronic form, as it is my right to request it under Regulation 1049/2001. If you have a paper copy then I would like to request that it is scanned and posted.

In any case here is my current address. I am EU citizen and I am planning to return to the EU soon, but for personal reasons, currently I am abroad:

Att: Daniel
Edificio Guadalupe, bloque 2
Avenida Uyuni
0000 Cochabamba,
Bolivia.

Yours faithfully,

Daniel.

Dear Informatics,

I have not received any answer to my request. In view of Article of 7.4 of Regulation 1049/2001, I proceed to my confirmatory application.

I hereby request to provide me with the requested information.

Furthermore, I hereby request to have the information of the SC and the subcontractor behind such SC for the following items: Specific Contracts (SCs) SC DIGITTM-001409, SC DIGITTM-004091, SC DIGITTM-000914 and SC DIGITTM-009140. This is a very limited set (4 SCs), so, it should not be time-consuming.

Yours faithfully,

Daniel.

Informatique

Dear Mr. Daniel,

Your requests as stated in your e-mails dated 6 January 2020 and 28 January 2020, relate to access to information, therefor they should be handled in accordance with the Commission’s Code of Good Administrative Behaviour.
As your requests do not relate to access to documents, we are not able to handle your requests under Regulation 1049/2001.

However, even considering your requests as requests for access to information, the information, which you seek to obtain, cannot be released as this would harm the legitimate commercial interests of economic operators or might prejudice fair competition between them.

Kind regards,

DIGIT ACCESS TO DOCUMENTS

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Dear Informatics,

I am not happy with this reply, but just in case you have misunderstood my request is to get documents (SCs) which are clearly falling under Regulation 1049/2001. Before taking any step about those documents can you provide a reason to refuse such request, since my request was refused, but with no reasoning based on the exceptions included in Regulation 1049/2001.

As for the request of the subset information, I understand from your reply that you are confirming that there are existing cases (normally there should be no cases) and the disclosure of those " cannot be released as this would harm the legitimate commercial interests of economic operators or might prejudice fair competition between them". I understand that I need to contact the Ombudsman for this matter.

Furthermore, herewith I file an official access to documents request pursuant to Regulation 1049/2001, to get access to all documents related to the Framework Contract DIGIT-TM.

Yours faithfully,

Daniel

Informatique

Dear Mr. Daniel,

May I please ask you to provide us with a copy of your identification document (ID or passport)?

Kind regards,

DIGIT ACCESS TO DOCUMENTS

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Dear Informatics,

You have requested a set of personal data.

In line with the provisions of Regulation (EU) 2018/1725, EU bodies must request only the minimum set of information needed for the processing operation to be compliant with the law, furthermore, I should be informed, before, on who is the controller for this processing information, point of contact and how to reach the controller, how to exercise my rights, how the information will be processed and what are the fields needed from the ID card for such processing.
Additionally, such processing, and pursuant to Regulation (EU) 2018/1725 Article 31, must be recorded in a public register (records register) describing such processing, I hereby request the link to this record.

Yours faithfully,

Daniel

Informatique

Dear Sir,

Thank you for your email and we apologize for the delay in replying. Your message was automatically sent to the Junk mailbox, not allowing us to review it promptly.

Please be informed that in order to be able to register your access to document request, we need your full name(s), surname(s) and a valid postal address. This information is the minimum information required by the Commission to verify whether applications for access to documents are submitted by actual beneficiaries of Regulation (EC) 1049/2001, in accordance with the Commission Decision of 19 December 2019. The Commission Decision can be found here: https://www.ombudsman.europa.eu/en/corre...

Without this information, we cannot proceed to the registration of your request, which is necessary for the commencement of the deadline for our reply (Article 7(1), Regulation (EC) 1049/2001).

So far, we have only received a first name and a postal address, which does not fulfil our requirements and would not allow us to provide you with the requested documents via registered mail. We have taken note of your request to receive the information via email, and this will also be the case. Nevertheless, please bear in mind that it is our obligation to send the documents requested also by registered mail, as this is a Commission requirement for formally notifying its access-to-documents decisions, as required by the EU Treaties.

Having said that and in order to be able to verify the application of the exception under Article 4(1) of Regulation (EC) 1049/2001, we would like to ask you to confirm whether your address is still the one below, as provided to us in your email dated 9 January 2020, or if it has changed.

Edificio Guadalupe, bloque 2
Avenida Uyuni
0000 Cochabamba,
Bolivia.

Please rest assured that the Commission processes your personal data in accordance with the Regulation (EU) 2018/1725. The relevant privacy statement and record of processing activities, which will provide you with all the information requested in your below email can be found here: https://ec.europa.eu/info/principles-and... and https://ec.europa.eu/dpo-register/detail...

In relation to the reference you made to a confirmatory application (as per your email dated 28 January 2020), please be informed that, as your application has not been dealt with yet at the initial level, pending the receipt of the requested information, your message received on 28 January cannot be considered a confirmatory application in the meaning of Article 7(2) of Regulation (EC) No 1049/2001.

We would like to remind you that your request is treated under the procedure of Regulation (EC) 1049/2001 on public access to documents. Under this procedure, you are entitled to receive specific documents, subject to the requirements of the Regulation.

In order to expedite the answer to your request once we receive the information we ask for above, we would like to clarify the exact scope of your application.

With your initial request of 6 January you asked for the following:
“The list of Specific Contracts (e.g.: SC DIGITTM-xxxxx) that have been signed with companies that are not freelancers nor identified subcontractors, per DG. And for those Specific Contracts the electronic document of each Specific Contract.
In principle since it is not authorised there should not be no any case unless a dishonest behaviour be has taken place.”

The same date, you sent additional communication, where you correctly stated:
“Just to clarify, the Specific Contracts (SC) are done between the EC and the consortium, but is the consortium signing a freelancer or a company (subcontracting with a not identified company)? The requested list should only have those SC that have been signed with a non identified company. I understand that this is verified for each SC”

We confirm that for all Framework contracts resulting from Call for tenders DIGIT/A3/PO/2017/022, the specific contracts are signed with the contractors that were awarded the respective Framework contract. No specific contract is signed with any subcontractor/freelancer.

Concerning the subcontracting, three different cases need to be distinguished:
1. Subcontracting to subcontractors already mentioned in the tender of the contractor (so called “identified subcontractors”) and to freelancers – in those cases the contractor may subcontract without the need to ask for authorization from the Commission;
2. Subcontracting to subcontractors not covered by p. 1 – in those cases the Commission has to authorize the subcontracting;
3. 2nd level of subcontracting (i.e. cases when the subcontractors under p. 1 or authorized subcontractors under p. 2 in turn would wish to further subcontract the performance of the tasks under a given specific contract) – this is what is not authorized by the contract and should not be done by the subcontractors.

We confirm that, to the best of our knowledge, there are no cases under the Framework contracts resulting from Call for tenders DIGIT/A3/PO/2017/022, in which the rule under p. 3 above has been breached. Since we are not aware of such infringements (“dishonest behavior” as you qualified it in your initial request), accordingly we are not in a position to provide any list of specific contracts under which the prohibition on second level of sub-contracting is not observed, nor such specific contracts.

The Commission service take seriously the proper management of all signed Framework contracts and the performance of the obligations of contractual parties that signed them. If we are provided with specific information for alleged breaches of the contracts under our management, we will investigate and take the appropriate measures, as provided in the contracts and the Financial Regulation.

If the above explanation satisfies your request, please inform us, in which case we will not proceed further with registering your application as request for access to documents.
If, nevertheless, you would like to receive access to Commission documents, then please:
- provide the requested information (your full name(s), surname(s) and a valid current postal address (if different from the one already provided), which will allow us to register properly your application;
- clarify the scope of your request for access to document by specifying which documents exactly you would like to get access to.

We would like to thank you in advance for your cooperation and we remain at your disposal for any questions in relation to the above.

Kind regards,

DIGIT ACCESS TO DOCUMENTS

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Dear Informatics,

Thanks for your reply.

Obviously, I am not satisfied with the answer and explanations, which are incomplete and not clear for me to proceed. Nevertheless, I remain positive and I expect that the EU Institutions as a public service will devote all the necessary energies to provide me with a prompt answer in a user and service oriented spirit to reach a successful conclusion to this matter. I understand that to demonstrate that good faith you will reply to all the items below and provide a constructive answer to all of them. I would appreciate if you do so.

The following items I must note before I can actually reply in full to your reply:
- It is not nice that my email gets to the junk folder. I hope you will provide me the reason why this has happened and that you will fix the problem to ensure this issue will never happen again in the future to anyone, so, the next reply takes less time and comes on a timely manner. Could you please confirm this point?
- Regarding your request for a copy of my ID, I understand from your reply that it is not mandatory to provide you with an ID for any request to access to documents under the procedure of Regulation (EC) 1049/2001 on public access to documents. Could you please confirm that my understanding is correct? Could you please also confirm that you drop your request to provide you with copy of my ID?

- I understand from your answer that:
1. The ombudsman recommendation is: "The Ombudsman recommends that the Commission register and deal with the application in question and that it no longer requires applicants to provide their full postal address, so long as a suitable alternative address for correspondence, such as an email address, is supplied".
2. You declared that the Commission processes your personal data in accordance with the Regulation (EU) 2018/1725, which clearly mandates that no personal data than required one must be requested.
3. You have declared that you will send the document via electronic means: “We have taken note of your request to receive the information via email, and this will also be the case“.
4. I declare hereby that I am willing to provide my personal email address.
Could you please confirm that based on my understanding (point 1 to 4) and in accordance with the Regulation (EU) 2018/1725, if I provide you with my email address and my last name then you will not require any other personal data?
Otherwise, could you please clarify what necessary personal data are you missing from me, is it my last name, my address, my email address, a sub set of those?

Regarding your answer regarding the documents under DIGIT/A3/PO/2017/022 and my specific request, before I could answer to that I need further clarifications, so:
- You confirmed that “the specific contracts are signed with the contractors that were awarded the respective Framework contract (so called “identified subcontractors”)”, so the Commission has all the specific contracts signed with identified subcontractors.
- You confirmed that “No specific contract is signed with any subcontractor/freelancer”, so, the so called “identified subcontractors” must sign a contract with the each of subcontractor/freelancer (so called back-to-back contracts) in order to ensure compliance to the contractual obligations under DIGIT/A3/PO/2017/022. I am sure you are well aware that a letter of intent is not a contractually biding document, so, it is not applicable to ensure the contractual obligations are met.
- You have declared that “three different cases need to be distinguished” and that in case 3 that “2nd level of subcontracting … is not authorized by the contract and should not be done by the subcontractors”.
- You declared that “The Commission service take the performance of the obligations seriously the proper management of all signed Framework contracts and of contractual parties that signed them”.
I understand from all of that that in order to ensure that in order to ensure the performance of the obligations of contractual parties, the Commission must have and must verify the specific contracts and the so called back-to-back contracts (since under DIGIT/A3/PO/2017/022 the Commission service has the right to receive this information. Could you please confirm that you have both sets of contracts for each freelance? If this is not the case, can you clarify with full details how can you ensure “take seriously the proper management“ as you qualified it in your reply for this matter (I understand this is done a systematic, disciplined and well documented manner)?

Additionally:
- You declared that “to the best of our knowledge, there are no cases under the Framework contracts resulting from Call for tenders DIGIT/A3/PO/2017/022, in which the rule under p. 3 above has been breached.”. Given that “to the best of our knowledge” is defined as “you mean that you believe it to be true but it is possible that you do not know all the facts”, I understand from your reply that you have confirmed that you are not sure if all the contracts met the performance of the contractual obligations for p.3 cases.
- You confirmed that “If we are provided with specific information for alleged breaches of the contracts under our management, we will investigate and take the appropriate measures, as provided in the contracts and the Financial Regulation”.
Given the previous items, I have provided 4 SCs (Specific Contracts (SCs) SC DIGITTM-001409, SC DIGITTM-004091, SC DIGITTM-000914 and SC DIGITTM-009140) that could be subject to be in case p.3, therefore, since you have been provided with information for alleged breaches of the contracts under your management, could you please investigate and take the appropriate measures, as provided in the contracts and the Financial Regulation? Otherwise can you confirm with 100 percent certainty that those 4 SCs are not in case p.3 and therefore the contractual obligations are met in full? You can also just provide the SC and the back-to-back contract and I can do the verification myself.

Yours faithfully,

Daniel.

Informatique

Dear Sir,

Thank you for your email.

Firstly, please note that the email address from which we receive your messages ([FOI #7553 email]), has been whitelisted and emails coming from that address will no longer arrive in the Junk mailbox.

As indicated in our email dated 3 April 2020, in order to register your request and provide you with the documents requested, we require a full name, surname and a confirmation of your postal address. No additional email address is requested. Without this information, we cannot register your request and proceed to our reply.

As regards your reference to the Ombudsman recommendation, please note that it constitutes only a recommendation and it is not compulsory for the Commission to follow it (see case 682/2014/JF at https://www.ombudsman.europa.eu/en/decis... and, more precisely, the Commission President’s reply to the Ombudsman of 9 March 2017 https://www.ombudsman.europa.eu/pdf/en/8...).

We hereby confirm that once we receive the above mentioned information (full name, surname and a confirmation of your postal address), we will be able to reply to your request for access to documents within the time frame set by Regulation (EC) 1049/2001, provided that the request has clear scope (including existing Commission documents you request access to).

With a view to speed up the procedure, please note that the European Commission has not signed any specific contracts with the below references:

1. DIGITTM-001409
2. DIGITTM-000914
3. DIGITTM-009140

As regards Specific Contract SC DIGITTM-004091, this indeed constitutes a signed specific contract. We can however confirm that this specific contract does not involve subcontracting by subcontractors and thus does not fall under case p.3 of our email of 3 April 2020.

If, despite the information provided above, you would like to get access to Specific Contract SC DIGITTM-004091, we will be able to assess your request under the specific requirements of Regulation (EC) 1049/2001 once we receive the above mentioned information from you.

As regards your request for further clarifications in relation to subcontracting, we can only refer you to the three point explanation in our previous email of 3 April 2020.

However, to avoid possible misunderstanding on you part, we would like to clarify once again the meaning of and illustrate the terms “members of a tendering group”, “subcontractors”, “identified subcontractors” and “second level of subcontracting”, as used in the procurement documents of call for tenders DIGIT/A3/PO/2017/022:

- in case of joint tenders (several companies submitting bids together), all the companies signing the offer constitute “members of the tendering group” (or “consortium members”). For example, Companies A, B and C could submit a joint offer as Consortium ABC. In this case Companies A, B and C are members of the tendering group and, in case of award of the contract to them, they have direct contractual relationship with the contracting authority. Thus Companies A, B and C are neither “subcontractor”, nor “identified subcontractors”.
- in the process of preparing their tender, Companies A, B and C may engage other companies (for example – Companies IS-1, IS-2 and IS-3) for performing part of the contract. Those companies are “subcontractors”, and since they are identified in the initial tender, they are called “identified subcontractors”.
- once the contract is signed and during its lifetime, the Companies A, B and C (acting as Consortium ABC) may suggest additional “subcontractors” – Companies AS-1, AS-2 and AS-3 to provide part of the services. In those cases the Commission has to authorize the subcontracting.
Please note, that both the “identified subcontractors” and the additionally authorised “subcontractors” are 1st level subcontractors, whereas the consortium members are not subcontractors at all.
- subcontracting by the subcontractors will be present if one of the “identified subcontractors” (Companies IS-1, IS-2 or IS-3) or of the additionally authorised “subcontractors” (Company AS-1, AS-2 or AS-3) in its turn subcontracts the performance of part of the contract to 2nd level subcontractors – for example, Companies X, Y or Z.

To illustrate with an example: 2nd level of subcontracting will be in place if Consortium ABC, consisting of the consortium members Companies A, B and C, engaged a 1st level subcontractor - Company AS-1, and in turn Company AS-1 engaged its own subcontractor - Company X. As a result, services to the contracting authority will be provided by service providers that are either employees of Company X, or freelancers contracted by Company X.

As clearly stated in our previous message, we are not aware of any case of 2nd level of subcontracting (as described above) under DIGIT-TM framework contracts. In all cases the service providers providing services to the contracting authority are declared either as employees of the consortium members or of the 1st level subcontractors, or as freelancers contracted by the consortium members or by the 1st level subcontractors. The Commission, however, cannot state with 100% certainty that all declarations made by third parties are true and thus all contractual obligations on subcontracting under the thousands of specific contracts signed under DIGIT-TM framework contracts are met if full. The Commission relies on the provided declarations which are presumed true until proven otherwise. If you are aware of cases where service providers are employed or contracted by 2nd level subcontractors, please provide the respective information and evidence to the Commission, which will investigate those cases.

Finally, in the middle of the Covid-19 crisis the Commission is facing unprecedented challenges and the limited resources of the administration need to be prioritised to deal with the most pressing needs. Therefore, we would like to reiterate our request (receipt of full name, surname and a confirmation of your postal address), as well as to request once again a clarification of the scope of your request for access to document by specifying which documents exactly you would like to get access to, in order to register and proceed with your access to documents request.

Kind regards,

DIGIT ACCESS TO DOCUMENTS

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Dear Informatics,

Thanks for your reply.

I am puzzled by this reply, you have neglected my questions and refused systematically to reply and provide duly clarifications. This leads to wonder why this has been done, but surely it is blocking this request and it is a waste of time.

Could you please reply to all my questions including those relating to Regulation 2018/1725. Without this information I am blocked by you to provide answers.

Furthermore you have provided a contradictory and/or confusing reply:

- "As regards, this indeed constitutes a signed specific contract. We can however confirm that this specific contract does not involve subcontracting by subcontractors and thus does not fall under case p.3 of our email of 3 April 2020." You can confirm that contractual obligations on subcontracting are met.

- "The Commission, however, cannot state with 100% certainty that all declarations made by third parties are true and thus all contractual obligations on subcontracting under the thousands of specific contracts signed under DIGIT-TM framework contracts are met if full." You cannot confirm that contractual obligations on subcontracting are met.

Since EC, as a public authority at all levels (Commissioner, Directors, Heads of Unit, etc.), after taking all necessary actions, has confirmed with 100% certainty that all contractual obligations on subcontracting for Specific Contract SC DIGITTM-004091 are met and does not involve subcontracting by subcontractors and thus does not fall under case p.3 (this means that after all duly verification from EC (DG DIGIT, DG RTD, SG, etc.), the evidences demonstrate that the identified subcontractor, that signed the Specific Contract SC DIGITTM-004091 with the EC, has not signed a contract with another subcontractor company), I hereby request access to all the files relating to Specific Contract SC DIGITTM-004091 including the evidences (files, contract with EC, contract with freelancer, notes, emails, meeting minutes, decisions, legal documents, notes, etc.) that lead to such confirmation with 100 per cent certainty and legality. I understand that if you refuse access to all those files, no matter the reason why, there will be no further processing of personal data.

Additionally, EC is bound to the proportionally principle, it does not seem proportionate when a suspicious case of non-compliance with contractual obligations is detected, requesting evidences to another party when the EC has the not only the power but the legal obligation to do so, moreover, taking in consideration the size of the Framework Contract (millions of euros), while to request the complete set of files and full verification of legal compliance of one SC, DIGITTM-004091, is clearly not disproportionate. If you do decide or not to investigate it is your full and solely responsibility and decision as legal authority, but surely it will clarify the willingness to detect fraudulent cases.

Given the current situation a prompt and efficient answer is expected, so this case can be closed as soon as possible thus resources can be used for other matters.

Yours faithfully,

Daniel

Informatique

Dear Sir,

As we have already informed you, in order to register your request under Regulation 1049/2001, we require a full name and surname. We understand that on the 24th of March 2020 you submitted a complaint under the Code of Good Administrative Behavior in which the following details have been indicated:

Name: Daniel
Surname: Garcia
Postal address: Edificio Guadalupe, bloque 2, Avenida Uyuni, 0000 Cochabamba, Bolivia

Could you please confirm that the above details are correct? With receipt of your confirmation, we will register your request and proceed to our reply within the 15 working days deadline indicated in Regulation 1049/2001.

Kind regards,

DIGIT ACCESS TO DOCUMENTS

European Commission
Directorate-General for Informatics
Rue Montoyer 15 - 07/P001
1049 Brussels/Belgium

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Nous ne savons pas si la réponse la plus récente à cette demande contient l'information ou non – si vous etes Daniel daniel veuillez vous connecter et laisser nous savoir.