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Considerations on the implementation of the Pre-Operational Validation

The proposed combination of CP-CSA funding schemes pursues the pre-operational validation of common application of surveillance tools at EU level via the competitive testing and assessment of several potential solutions.

This competitive testing is to be implemented in Phase 2, via the contracting of different solutions that will target the demonstration of innovative surveillance capabilities in line with the Users' needs. 

The Consortium, through the Common Validation Entity (CVE), will contract the necessary services to industry for the validation of one/several operational solutions.

This contracting has been considered as one of the critical components of the overall Project, and the way and conditions under which this contracting takes place will have a relevant impact in the execution of the Project and in the achievement of the Project objectives.

As stated in the "Work Programme Cooperation 2012 - Theme 10 Security", the following Specific requirements will apply for the implementation of the Pre-Operational Validation and for the associated call for tenders:

  • The Consortium will ensure that the call for tenders launched under the framework of the Project respect the conditions for the Article 16(f) exemption of the public procurement Directives 2004/18 and Article 13(j) of Directive 2009/81/EC, that the risk-benefits sharing in a POV takes place according to market conditions and that the Treaty principles are fully respected throughout the process.
  • The Consortium shall verify that the topic proposed for the joint CLOSEYE call for tender would fit the scope of an R&D service contract.
  • The practical set-up foreseen for the POV shall be clearly announced in the CLOSEYE contract notice. This shall include the intention to select multiple companies to start the pre-operational validation in parallel, as well as the number of phases and the expected duration of each phase.
  • Functional specifications shall be used in order to formulate the object of the CLOSEYE tender as a problem to be solved without prescribing a specific solution approach to be followed.
  • In view of triggering tenders to send in innovative offers that include R&D that can bring breakthrough improvements to the quality and efficiency of public services, the selection of offers shall not be based on lowest price only. The CLOSEYE contracts shall be awarded to the tenders offering best value for money, that is to say, to the tender offering the best price-quality ratio, while taking care to avoid any conflict of interests.
  • In respect of the Treaty principles the public purchasers shall ensure EU wide publication for the CLOSEYE call for tender in at least English and shall evaluate all offers according to the same objective criteria regardless of the geographic location of company head offices, company size or governance structure. The POV process should be organised so as to stimulate companies to locate a relevant portion of the R&D and operational activities related to the CLOSEYE contract in the European Economic Area or a country having concluded a Stabilization and Association Agreement with the EU.
  • In CLOSEYE, the public validators (The Public Authorities) do not reserve the R&D results exclusively for its own use. To ensure that such an arrangement is beneficial both for the Consortium Members (public purchaser) and for the companies involved in CLOSEYE, R&D risks and benefits are shared between them in such a way that both parties have an incentive to pursue wide commercialization and take up of the new solutions. Therefore, for POV, ownership rights of IPRs generated by a company during the CLOSEYE contract should be assigned to that company. The public authorities directly contributing to the CLOSEYE phase (2) should be assigned a free licence to use the R&D results for internal use as well as the right to require participating companies to license IPRs to third parties under fair and reasonable market conditions, to be specified in the Call for Tender. A call-back provision should ensure that IPRs from companies that do not succeed to exploit the IPRs themselves within a given period after the CLOSEYE Project return back to the public bodies in charge of border surveillance.
  • In order to enable the public validators to establish the correct (best value for money) market price for the R&D service, in which case the presence of State aid can in principle be excluded according to the definition contained in Article 107 of the Treaty on the Functioning of the European Union, the distribution of rights and obligations between public validators and companies participating in the POV, including the allocation of IPRs, shall be published upfront in the CLOSEYE call for tender documents and the CLOSEYE call for tender shall be carried out in a competitive and transparent way in line with the Treaty principles which leads to a price according to market conditions, and does not involve any indication of manipulation. The consortium of public purchasers should ensure that the CLOSEYE contracts with participating companies contain a financial compensation according to market conditions compared to exclusive development price for assigning IPR ownership rights to participating companies, in order for the CLOSEYE call for tender not to involve State aid.

Other aspects associated to the configuration of the payments and the call for tenders shall be further defined during the Phase 1 of the Project.

The role of the Common Validation Entity

The implementation of the different phases of Project Closeye foresees the so-called "Common Validation Entity".

In accordance with the Work Programme Cooperation Theme 10 Security, the Common Validation Entity Constellation is an arrangement for joint validation where all the involved public authorities have commonly designated one legal entity to conduct the joint validation with a joint mandate and joint resources of all public validating authorities.

According to the terms of the FP7 call, and acting as the CVE, ISDEFE shall fulfill the following requirements:

  1. To ensure that the conditions for the Article 16(f) exemption of the public procurement Directives 2004/18 and Article 13(j) of Directive 2009/81/EC are respected
  2. The POV contracts shall be awarded to the tenders offering best value for money, that is to say, to the tender offering the best price-quality ratio, while taking care to avoid any conflict of interests
  3. The Consortium  Members shall ensure EU wide publication for the POV call for tender in at least English and shall evaluate all offers according to the same objective criteria regardless of the geographic location of company head offices, company size or governance structure
  4. The Consortium  Members do not reserve the R&D results exclusively for its own use
  5. R&D risks and benefits are shared between all the Consortium Members (the Public Purchaser) and the contractors in such a way that both parties have an incentive to pursue wide commercialization and take up of the new solutions. Therefore, for POV, ownership rights of IPRs generated by a company during the POV contract should be assigned to that company.
  6. The consortium of public purchasers should ensure that the POV contracts with participating companies contain a financial compensation according to market conditions compared to exclusive development price for assigning IPR ownership rights to participating companies, in order for the POV call for tender not to involve State aid.
  7. The POV contract that will be concluded with each selected organization shall take the form of one single framework contract

ISDEFE, acting as the CVE, shall:

  1. Conduct the joint validation with a joint mandate from the Contracting Board and joint resources of all public purchasing authorities.
  2. Coordinate the Tendering Process decided by the Contracting Board.
  3. Support the Contracting Board by defining the proposal evaluation criteria decided by the Contracting Board.
  4. Evaluate the proposals following the above mentioned criteria.
  5. To Award the Contract to the selected company/ies following the approval and decision of the Contracting Board.

In order to be sure  that the Tendering Process is agreed by all the partners, this shall be followed and approved by the Contracting Board. For that purpose, prior to the CVE launching the Tender Awarding and Contracting process, the Contracting Board will have to approve the following milestones:

  • approval of the Tender Specifications proposed by the CVE;
  • approval of the proposal evaluation criteria;
  • approval of the proposals received;
  • approval of the proposal evaluation results;
  • approval of the awarding and contracting decision.

After all these milestones are surpassed, the final go ahead for the CVE to formalize the contract will be given.
Given that the CVE is established in order to coordinate the Tendering Process on behalf of the CLOSEYE Consortium, and in order to minimize the risk incurred by the this entity, all the Consortium Members will be jointly liable for the issues related with the Tendering Process an Awarding Process (WP03 and WP04) both towards the Commission and towards the Contractors.

The role of the Contracting Board

The CLOSEYE Contracting Board (CB) will be integrated by a representative of each Partner and by the Common Validation Entity (CVE). The CB will be accountable for the  definition of the terms and conditions for the Tendering Process to be coordinated by the CVE, including, but not limited to, the terms and conditions of the tender specifications, the proposal evaluation criteria and the Tender Awarding and Contracting (WP04).

More specifically, The CB will be responsible for the following tasks:

  1. To approve the Project Plan;.
  2. To analyse, during the phase 1 of the Project and under WP3, different contracting structures and alternatives that best fit the object of the Tender Process;.
  3. To decide the procedures to follow in the call for tenders according to the interests of the users and taking into consideration the time and budget limitations of the Project as well as the pursue of cost-effective solutions;
  4. To decide the guidelines for the definition of the Tender Process according to the analysis carried out during Phase 1;
  5. To decide the guidelines for the definition of the proposal evaluation criteria according to the analyses carried our during Phase 1;
  6. To supervise and monitor the elaboration of the tender specification by the CVE and validate its content before it is launched, according to the scope of the CLOSEYE Project;
  7. To supervise the evaluation of the proposal received by the CVE and guarantee that this evaluation runs according to the scope of the CLOSEYE Project;
  8. To ensure that the decision making process within the CB for the contract awarding will be transparent, independent from particular interest and fully respects the rules for proposal evaluation criteria defined in phase 1;
  9. Ensure that the CLOSEYE Contracts with participating companies contain a financial compensation according to market conditions compared to exclusive development price for assigning IPR ownership rights to participating companies, in order for the POV call for tender not to involve State aid;.
  10. Approve the CLOSEYE Contract that will be concluded with each selected company which shall take the form of one single framework contract;.
  11. To validate, under the frame of the CLOSEYE Project, the decision of the awarding of the contract before this awarding is materialized, in order to confirm that it is fully in line with this scope of the Project.

The most appropriate procurement modality will be identified during' the Phase 1 of the Project, in accordance with the different analyses carried out and taking into consideration the limitations of the Project in terms of time and budget, and also the rights and obligations of the CVE (as defined in the Description of Work and the Consortium Agreement)



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