Dear Mr Sadagursky,

 

Thank you for contacting again the European Court of Auditors (ECA).

 

We acknowledge receipt of your message of 16 November 2024. Your request
is currently under treatment and we will provide you with a reply in due
course.

 

Kind regards

ECA-INFO team

 

      ECA-INFO

Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[1]eca.europa.eu

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Dear Mr Sadagursky,

Thank you for contacting again the European Court of Auditors (ECA).

Your request has been treated according to the rules on public access to
ECA documents, which are set out in [1]Decision No 37/2023 of the Court of
Auditors regarding public access to Court documents ("the Court's
decision").

By your request, you seek access to “documents containing information
related to any market study that  your institution may have performed
before adopting the ServiceNow technology”, more specifically to “disclose
the identified competitors of this vendor on the single market, who
performed the market analysis (ECA staff or any [sub]contracted evaluator)
and also provide the identifier of the Framework Contract (ECA's or
interinstitutional one of DIGIT) that was used for acquisition of COTS,
consulting services, SaaS licenses, and all the payment amounts disbursed
for this vendor since earliest 2022 (if applicable) until November 2024”.

In reply to your request, we can provide certain elements regarding the
process that led the ECA to choosing ServiceNow technology. Before the
selection of ServiceNow, a market analysis and comparison of different
solutions (existing at ECA) was considered:

- Re-using of an existing tool already used by the ECA,

- Custom development of a corporate solution,

- Use a market solution. This option was retained as the preferred
solution. The vast majority of institutions, government agencies and
private sector companies use these kind of solutions to cover the Service
management needs. The ECA also took into account the criteria proposed by
a market research for the specific market segment.

At the end of the evaluation process, the ECA considered that ServiceNow
offered a cost effective and flexible option and started implementing the
platform as a support for one of its business domains.

Please be informed that the evaluation (market analysis) was performed by
ECA staff and not by a (sub)contractor.

As regards the “identifier of the Framework Contract (ECA's or
interinstitutional one of DIGIT) that was used for acquisition of COTS,
consulting services, SaaS licenses”, please be informed that the framework
contracts identifiers are DI/07722 and DI/08031, and this project also
falls in the framework of the Master Subscription Service Agreement of 23
November 2020 between ServiceNow Nederland BV and the European Union
represented by the European Commission, Directorate General for
Informatics (DIGIT).

As regards your request to be provided with the information on “all the
payment amounts disbursed for this vendor since earliest 2022 (if
applicable) until November 2024”, we can inform you that all the ECA’s
Annual information on specific contracts based on a framework contract is
available on our [2]Procurement webpage. 

However, in line with Article 4.3 of the Court’s decision, we are not in a
position to provide you the detailed information about the different price
elements as its disclosure would undermine the protection of the
commercial interests of the provider.

For the same reason, we are not in a position to disclose internal
assessment documents, as they contain confidential or sensitive elements,
such as considerations similar to those contained in evaluation reports in
the context of tender procedures, personal data and data intended only for
internal use of the ECA.

Under Article 4.3 of the Court’s decision the release of these documents
would undermine the protection of commercial interests of legal persons.

In fact, if these documents were to be released in the public domain, this
would expose the evaluation process of choosing this technology, which
similarly as in tender procedures, remains confidential even after the
decision was taken, because it involves information on specific solutions
proposed by economic operators.

Furthermore, under Article 4.4(b) of the Court’s decision, the disclosure
of these documents would severely undermine the decision-making process of
the ECA, even after the decision has been taken. These documents contain
opinions for internal use as part of deliberations and preliminary
consultations within the ECA. If they are released in the public domain,
the staff making the assessments and evaluations may refrain from giving
the hierarchy an honest and objective advice and this would seriously put
in danger the decision-making process in cases of choosing IT solutions,
leading to a financial and efficiency impact on the functioning of the
ECA’s services. 

This notwithstanding, in application of Article 4.5 of the Court’s
decision, the ECA may decide to allow access to a document where there is
an overriding public interest in its disclosure. We note that, contrary to
case-law*, you have not adduced any explanations as to how disclosing the
requested documents to you would serve an overriding public interest. In
line with Article 4.6 of the Court’s decision “The overriding public
interest used to justify disclosure must be both objective and general in
nature. The person alleging the existence of an overriding public interest
shall state which specific circumstances justify disclosure of the
documents concerned.”

Please be informed that as regards your request for access to documents,
under Article 9 of the Court’s decision, you can ask the ECA to reconsider
its position within one month of receiving this reply. Your request for
reconsideration should be submitted to the President of the ECA,
preferably using the [3]contact form available on the ECA website, or by
e-mail to: [4][ECA request email].

 

Kind regards

ECA-INFO team

 

* according to which it is “for the party alleging an overriding public
interest, within the meaning of that clause, to prove that interest”
(judgment of 25 September 2014, Spirlea/Commission ([5]T-669/11),
paragraph 97).

 

      ECA-INFO

Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[6]eca.europa.eu

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From: ECA-INFO <[ECA request email]>
Sent: Monday, November 18, 2024 8:37 AM
To: Mordechai Sadagursky <[FOI #15206 email]>
Cc: ECA-INFO <[ECA request email]>
Subject: RE: access to documents request - Market competition evaluation
before adopting ServiceNow technology at ECA

 

Dear Mr Sadagursky,

 

Thank you for contacting again the European Court of Auditors (ECA).

 

We acknowledge receipt of your message of 16 November 2024. Your request
is currently under treatment and we will provide you with a reply in due
course.

 

Kind regards

ECA-INFO team

 

      ECA-INFO

Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[7]eca.europa.eu

  　 Please consider the environment before printing this email

 

 

 

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