GENERAL CONDITIONS OF TENDER

 FOR ESA CONTRACTS

(up to 15/01/2013; replaced by ESA/REG/001, Annex IV)


The following General Conditions of Tender shall apply to all Invitations to Tender (ITT) and Requests for Quotation (RFQ) issued by the Agency, except for where they are modified or amended by the Special Conditions of Tender issued as part of the ITT or RFQ.  The General Conditions of Tender are distributed to all potential tenderers registered with the Agency.  They will not be issued with individual ITT's or RFQ's.  A copy of Annexes 1 and 2 will be included with individual ITT's and RFQ's for completion and return to the Agency.  They shall apply to competitive and non-competitive ITT's and RFQ's except for those conditions expressly stated to be applicable only to competitive situations.
 

A. GENERAL STANDARDS OF PRESENTATION

1. Structure of the tender

The tender shall present the information required, in the form specified hereafter and in accordance with any specific provisions of the Special Conditions of Tender forming part of the ITT/RFQ.  Tenders shall be subdivided into the following main elements:


2. Length of tender documents

The tender should be precise and concise.  Unless expressly so stated in the Special Conditions of Tender there is no limitation on the number of pages, but it should be borne in mind that the quality of the tender will not be increased by unnecessary length or by needlessly detailed descriptions.  Mere repetitions of the Agency's requirements should be avoided.

3. Use of English or French language

The tender, and all correspondence relating to it shall be in English or French, unless the Special Conditions of Tender state otherwise, or on request of a tenderer permission is given in writing by the Agency for the use of another language for the tender or parts thereof.

4. General information on tenderer's status

If the tenderer has already submitted the information requested in the Company Questionnaire he shall so indicate in his tender, with a reference to the date of submission.  If he has not done so, he shall submit the information by visiting the ESA Industrial Portal at the following address http://www.esa.int/industry and by selecting there the item “Registering as ESA Potential Supplier” (the questionnaires available there replace and cancel those which were included as Annex 4 in the General Conditions of Tender). He shall include a copy of the questionnaire in the tender itself.  He shall ensure that the same information relating to proposed sub-contractors has either been submitted already in the same way, or is submitted at the time of tendering.

Upon request, tenderers shall submit any additional information required.

B. FORMAL CONDITIONS, COMMITMENTS, UNDERTAKINGS

1. Certification of free competition

By submission of the tender, the tenderer implicitly certifies that:


2. Restriction on publicity actions

Tenderers are not authorised to mention in their publicity that they have been invited to tender, are tendering or have tendered, until after notification of the result of the ITT/RFQ.

3. Validity period of tender

The tender shall specifically state a period of validity of 4 months from the closing date for the receipt of tenders, or such other period as may be provided for in the Special Conditions of Tender.

4. Period for tender preparation

The closing date for submission of tenders is stated in the cover letter to the ITT/RFQ.  Extensions of this period, requested in writing, will only be considered by the Agency if operational requirements so permit, and if, in the case of competitive tendering, fair competition is not thereby impaired.  Requests for extensions received less than two weeks before the closing date will, for competitive ITT/RFQ's, not be considered.

5. Right to audit

ESA will be entitled, after receipt of the tender and during its validity period, to request the tenderer to provide evidence of any element of his quotation and may call for additional detialed information irrespective of the type of price proposed.  The Agency reserves the right to audit the quoted prices.

6. Negotiation prior to contract award

The Agency reserves the right to negotiate with one or more tenderers before taking a decision on the placing of a contract.  The offer shall remain valid until changes are agreed in writing.  The original offer, as modified shall constitute a binding revised offer.

7. Retention of tenders

Any document submitted in reply to the ITT/RFQ shall become the property of the Agency.  It will use commercially confidential or proprietary information solely for the purpose of the evaluation of tenders and the selection of a contractor.  In the case of a successful tender, documentation and information incorporated in the subsequent contract will be governed by Part II of the General Clauses and Conditions for ESA contracts.  The Agency reserves the right to eliminate from considerations tenders which purport to restrict the use of documents or information beyond these provisions.

8. No reimbursement of tender expenses

Expenses incurred in the preparation and dispatch of the tender will not be reimbursed.

9. No commitment by the Agency

The ITT/RFQ does not bind the Agency in any way to place a contract, and the Agency reserves the right to place a contract for only part of the activity covered by the ITT/RFQ.

10. Responsiveness of the tender

a) General compliance and presentation

 The tender shall comply in all respects with the ITT/RFQ, and shall be so presented that it can be related, point by point, to the requirements.

b) Cover letter

 The tender shall have a cover letter duly signed by a person authorised and explicitly stating compliance with the following points:

 A4;  B3;  B10c);  B10d)

c) Compliance with technical and management requirements

 The tenderer shall explicitly state that the requirements of the specification and/or work statement will be met.  Any reservation must be clearly identified in a separate chapter of the tender, with appropriate reference to the requirement concerned.

 The consequences of the reservation, the reasons therefore and the possibility of and conditions for it being withdrawn shall be described.

d) Compliance with contract conditions

 The tenderer shall explicitly state that the contract conditions are read, understood and accepted and that any sales conditions of his own do not apply.  In case, exceptionally, that he wishes to propose modifications or amendments, the full text of such modifications or amendments shall be given and the reasons for their being requested be clearly explained.

e) Reservations

 Any reservations to the requirements, or proposed modifications or amendments to the contract conditions will be taken into account in the evaluation.  Acceptance of a tender containing reservations, or proposed modifications or amendments is not to be construed as acceptance of these, until such acceptance is stated in writing by the Agency.

f) Options

 If the Special Conditions of Tender call for the submission of options or alternatives, or if the tenderer wishes of his own initiative to submit these, the Agency reserves the right to disregard such a submission if a tender compliant with the requirements is not also made.

g) Geographical distribution

 Tenderers shall submit a completed Geographical Distribution form (Annex II) showing the countries in which activities are performed or from which significant purchases are made. See points C.4, C.5, and C.7 below.

C. PLANNING AND COSTING REQUIREMENTS

1. Work breakdown structure

The tender shall present the work offered in a Work Breakdown Structure (WBS) in accordance with the standards laid down in Annex 5(1) hereto. The Special Conditions of Tender will specify the paragraphs applicable to the particular ITT/RFQ.  The work package descriptions must be coherent with the statement of work, costing and planning, so that tenders can be evaluated on a common basis.

2. Planning proposal

The tender shall contain a schedule for the proposed work in accordance with the standards described in Annex 5(2) attached hereto.  The Special Conditions of Tender will specify the paragraphs applicable to the particular ITT/RFQ.

3. Cost breakdown

The tender shall present the costs for the proposed work in accordance with the standards laid down in Annex 5 (3) attached hereto.  The Special Conditions of Tender will state which of the costing forms have to be submitted in the tender, and the conditions relating to the level of fee allowed.  This information shall be included in the pages of the tender unless the tenderer has been requested instead to provide all or some of the cost data in electronic form (using the ECOS software).

The use of  ECOS for WBS costing presentation is mandatory for any proposals for major projects.  This includes all cost proposals (or cost estimates) submitted for Phase C/D and may also include cost proposals (or cost estimates) for Phase B or Phase E. In this context, a major project is to be considered to be any project with an industrial content of 20 M Euros or more, for the total programme of the Agency (from Phase A or B up to Phase C/D or E, as the case may be).  The Agency may decide to apply ECOS to projects between 5 and 20 M Euros industrial content by specifying this in the Special Conditions of Tender.

Last, should industry elect to do so, any other financial proposal can be submitted electronically, generated by ECOS, and will be accepted for evaluation, provided that the tenderer also includes a hard copy summary of the financial proposal as well as the electronic copy (e.g. diskette) of the detailed data.

4. Currency of the Quotation

Unless the RFQ or ITT specifies otherwise, the binding price (and legal tender) shall be the total price stated in Euro.

Nevertheless, if the company’s cost accounting system records costs in the national currency (NC) and the hourly rates and overheads are established in national currency, the details of the price as required in the PSS costing forms shall be presented in the national currency before conversion into Euro (ISO code = EUR).
 

5. Conversion rates

As from 1 January 1999, the 11 countries participating in the Euro (EURO 11) are subject to the following “irrevocably fixed conversion rates between the Euro and the currencies of the States adopting the Euro” (as per EC Regulation L359 adopted on 31/12/98) :
 
 
Country  National Currency ISO Code Conversion Rate (= 1 Euro/EUR)
Autria Austrian Schillings ATS 13.7603
Belgium Belgian Francs BEF 40.3399
Finland Finnish Marks FIM 5.94573
France French Francs FRF 6.5597
Germany German Marks DEM 1.95583
Ireland Irish Poinds IEP 0.787564
Italy Italian Lire ITL 1936.27
Netherlands Dutch Guilders NLG 2.20371
Portugal Portuguese Escudos PTE 200.482
Spain Spanish Pesetas ESP 166.386

For any tenderer or proposed subcontractor located in countries in the EURO 11, the above conversion rates shall be applied and shall be stated on the PSS forms.

For any tenderer or proposed subcontractor located in countries outside of the EURO 11, the exchange rate shall be stated on the PSS forms and shall be clearly explained in the exhibit to form PSS-A2.

Should further states subsequently adopt the Euro, the applicable conversion rates shall be those then adopted by the appropriate European Authorities. ”
 

6. Quotations free of taxes and customs duties

Prices shall be quoted free of taxes and customs duties.  In cases where the tenderer considers that he will remain subject to the payment of taxes or customs duties, he shall indicate separately the applicable rates, the corresponding estimated total tax or customs duty amount, and the reason why he believes exemption from tax or customs duties cannot be obtained.  Attention is drawn to the provisions of Clause 18 of the General Clauses and Conditions for ESA contracts.

7. Advances and progress payments

Tenderers shall state acceptance of any payments scheme given in the ITT/RFQ.  They may also, unless specified to the contrary, propose an alternative payments plan which reflects the foreseen expenditure. Progress payments shall be linked to the completion of well defined milestones (work packages, tasks, phases, etc.) or may, in the case of cost reimbursement contracts be made at regular intervals.  Proposed advance and progress payments may not exceed the limits stated in Clause 20.2 of the General Clauses and Conditions for ESA Contracts, and shall be subject to negotiation.

If a proposed payments plan differs signifcantly from that laid down in the ITT/RFQ the effect on the price shall be clearly stated.  Any proposal shall be coherent with the requirements of Annex 5(2) para 6 to these General Conditions of Tender and with the costing forms (Annex 5(3)) required to be completed by the Special Conditions of Tender.

If the tender contains different currencies (see C.4 above) the tenderer shall clearly indicate in which currencies he wishes payment to be made.

8. Royalties and licence fees

The Agency will only accept to pay licence fees or royalties on the condition that:


A copy of the documents justifying the request for the payment of a licence fee or royalty, or the appropriate part thereof, shall be included in the tender.

9. Use of ESA coordinated test facilities

The Agency maintains its own test facilities and supports a number of facilities in national test centers, which can be used for Agency programmes, with certain priorities of access.  A list of these "Coordinated European Test Facilities" (CETeF) with basic specifications is given in tables 1, 2 and 3 (Annex 3).  Further general information on these facilities regarding suitability and availability of the CETeF can be obtained from the Test Services Division at ESTEC.

Unless the tenderer envisages the use of his own test facilities, he shall base his proposal on the use of these CETeF, wherever technically justified.  Any alternative facility shall be justified and costed separately.

In the case where the tenderer proposes the use of CETeF, he is required to supply the following information:


The CETeF will be put at the disposal of the selected contractor as an Agency undertaking for a contractually agreed test programme and test period.  The cost of the use of these CETeF will not be charged to the contractor and need not be costed for in the tender.

D. CONDITIONS RELATING TO INTELLECTUAL PROPERTY RIGHTS

1. Third party commitments

The tenderer shall indicate if he has entered into any arrangements or licence agreements as to intellectual property rights concerning the subject of the ITT/RFQ, either as part of a general arrangement or with specific reference to the ITT/RFQ.  A copy of the document recording the commitment, or an appropriate part thereof, shall be submitted with the tender.  If such arrangement or agreement would result in costs to be borne by the Agency these must be separately identified, in accordance with C.8) above.

2. Reservation and restrictions

If as a result of


the tenderer wishes to make any restriction on the rights of distribution and use, as foreseen and defined in Part II of the General Clauses and Conditions for ESA Contracts, of any data, including documentation, related to the work under the contract, such proposed restriction must be clearly defined and justified in the tender.  It will be taken into account in the evaluation and if contrary to the stated objectives of the ITT/RFQ, might render the tender unacceptable.  The Agency will not accept reservations made subsequent to the closing date of the ITT/RFQ.

E. CONDITIONS RELATING TO SUBCONTRACTS

1. Placing of subcontracts

If the tenderer intends to place subcontracts, he shall, unless otherwise provided for in the Special Conditions of Tender, do so on a competitive basis wherever possible.  Subcontracts are defined in the explanatory text to point 3.11 of Form PSS A1 (Cost Element Data Sheet -Annex 5(3)).

2. Identification of subcontracts

The tenderer shall indicate proposed subcontracts, the country to which the subcontractors belong, the place of execution of the subcontracted work as well as the corresponding percentage of the total price of the tender (see General Conditions of Tender, C.4 Quotation in national currency, and C.5 Conversion rates above).

3. Information concerning subcontractors' offers

In submitting a tender containing proposed subcontractors, the tenderer shall indicate the reasons why, and means by which he has selected the proposed subcontractor, and the status of negotiation with him.

4. Agency participation in subcontractor evaluation

If, in exceptional cases, the Agency wishes to participate in the evaluation and/or selection of subcontractors, the Special Conditions shall so specify, together with the procedures and conditions applicable to such activity.

F. AMENDMENTS TO DOCUMENTS AND COMMUNICATIONS

1. Acknowledgement of receipt

Invitees to tender are requested to send by return of post to the Agency the Acknowledgement of Receipt attached to the Special Conditions of Tender, stating whether they intend to submit a tender or not.  Failure by a potential bidder to return the form might result in them not receiving answers to tenderers' queries (see F.3) or other correspondence related to the ITT/RFQ.  No extension of the tendering period will be granted on these grounds.

2. Amendment of the ITT/RFQ

The Agency reserves the right to issue amendments to the ITT/RFQ.

3. Questions relating to the ITT/RFQ or tender

Any questions by invitees to tender concerning the ITT/RFQ shall be submitted in writing not later than three weeks before the closing date to the nominated Contracts Officer in the establishment concerned. Questions shall, where possible, make specific reference to the appropriate section(s) of the ITT/RFQ documents.  When the Agency gives a reply it will normally forward the reply(ies) together with the question(s) to all invitees to tender.

Any request for documentation referred to in the ITT/RFQ shall be sent to the nominated Contracts Officer, with copy to the Scientific and Technical Publications Branch, ESTEC.  The Agency does not undertake to make any document available unless the ITT/RFQ documents specifically state that such document is available on request for the purpose of the ITT/RFQ.  Requests for information relating to the CETeF (see C.9 above) shall be sent to the nominated Contracts Officer, with copy to the Test Services Division, ESTEC.

The Agency reserves the right to ask tenderers for clarifications of their tenders during the evaluation period.  Answers, addressed in writing to the nominated Contracts Officer, must be received within three days of dispatch of the request, if no other period is stated. Clarifications shall not be regarded as amendments or modifications of the tender, in the case of competitive tenders.

4. No information about evaluation during evaluation period

Tenderers are not entitled to contact Agency staff during the evaluation and selection period to ask for information on the evaluation.  The Agency reserves the right to eliminate from the evaluation a tenderer contravening this provision.

5. Amendment, withdrawal or resubmission of the tender

Amendment, withdrawal or resubmission of the tender will be permitted if they reach the Agency before the closing date and time, in accordance with the despatch conditions.

6. Information about the result of the ITT/RFQ

Tenderers will be informed in writing of the result of the ITT/RFQ  after a decision has been taken.  Upon receiving notice that his tender has been unsuccessful, a tenderer may request the nominated Contracts Officer to advise him of the reasons why the tender has not been retained.  Any information will be limited to the tenderer's own tender.  The decision on the result of the ITT/RFQ will be without appeal, and the Agency will not enter into correspondence on the reasons for the decision.

DISPATCH AND RECEIPT CONDITIONS

1. Packing of tenders

Competitive tenders shall be dispatched in double envelope.  The inner envelope shall be sealed and shall be without indication of origin but marked with the definition of the supplies or services and the reference number of the ITT/RFQ.

Both sides of the envelope shall be marked as follows:

 CONFIDENTIAL
 TO BE OPENED BY THE TENDER OPENING BOARD ONLY

The outer envelope, carrying the tenderer's name and address shall be sent to the establishment issuing the ITT/RFQ.  Competitive tenders shall be for the attention of the Central Registry.

Non-competitive tenders may be addressed for the attention of the responsible contracts officer, and need not be packed in accordance with the above conditions, but tenderers are advised, if their tender contains commercially sensitive information, to ensure that they are in sealed envelopes, appropriately marked.

2. Dispatch of tenders

Competitive tenders shall be sent by post or delivered by hand.  If sent by post they shall be registered and dispatched at least five days before the closing date.

At the time of the dispatch of a competitive tender, the tenderer shall telegraph or telex the following information to the contracts service of the establishment concerned, for the attention of the responsible contracts officer:

If, the abovementioned formalities having been fulfilled, the tender does not reach the Agency by the closing date, the tenderer will be informed and an extension may be granted in order to allow him to forward duplicates.  Tenders arriving after the expiry of this extension will not be taken into consideration.

3. Receipt of tenders

Only personnel of the Central Registry of the establishment concerned are authorised to issue a receipt upon delivery of competitive tenders or to issue an official signature in the case of a registered parcel.

ANNEX I TO GENERAL CONDITIONS OF TENDER

 ACKNOWLEDGEMENT OF RECEIPT








Please note that failure to return this form or to return it with incomplete information may result in necessary subsequent information not being received by invitees to tender.  It should be returned within 5 calendar days after receipt of the ITT/RFQ.

Acknowledgement of receipt of ITT/RFQ reference no.:

Attention: (Responsible Contracts Officer)
  (Establishment)
  (Address)
  (Place - Country)
 

Dear Sirs,

We confirm that we have received the abovementioned invitation to tender with all attachments.


In future please send us ITT/RFQs on similar subject matters YES/NO*)
 

Name, address, telephone and telex number of our company, and name and function of responsible person to whom communications should be sent on the above subject, are :
 

Date: . . . . . . . Signature: . . . . . . . . . .
 
 

*) please delete or complete, as appropriate.

ANNEX 2 TO GENERAL CONDITIONS OF TENDER

 GEOGRAPHICAL DISTRIBUTION FORM

The tenderer is requested to complete the table below showing the amounts and percentages of work included in the tender against each of the countries listed.

ANNEX 3 TO GENERAL CONDITIONS OF TENDER

CO-ORDINATED TEST FACILITIES








This document describes in outline the characteristics of the European Co-ordinated Environmental Test Facilities at ESTEC, IABG (Munich), CNES (Toulouse) and IAL (Liege).  Conditions for the use of these facilities are described in section C.9 of the General Conditions of Tender.

Tenderers should note that this document is subject to regular updating. Details can be obtained from Test Services Division, ESTEC.
 

ANNEX 5 to GENERAL CONDITIONS OF TENDER

 PLANNING AND COSTING REQUIREMENTS








This document contains the planning and costing documents which specify the information required for tenders as regards planning and costing.  It consists of three parts:

Annex 5(1)
Work Breakdown Structure defining how the proposed effort should be broken down into work packages appropriate to the nature of the work and coherent with the planning and costing.

Annex 5(2)
Planning defining the planning requirements and standards appropriate to the work proposed.

Annex 5(3)
Costing consisting of the various costing forms appropriate to the work proposed, with explanations as to how the forms are to be completed.
 

The Special Conditions of Tender for each ITT / RFQ will specify, by reference to specific paragraphs, the level of work breakdown structure and presentation and planning that is required and the costing forms to be completed and submitted as part of the tender, in accordance with sections C.1, C.2 and C.3 of the General Conditions of Tender.

ANNEX 5(1) to GENERAL CONDITIONS OF TENDER
 WORK BREAKDOWN STRUCTURE REQUIREMENTS

1. Objectives

Unless otherwise specified in the Special Conditions of Tender, the tenderer shall submit as part of his bid a Work Breakdown Structure (WBS) in accordance with the following requirements.

The purpose is to obtain a systematic description of the tasks to be performed to meet the requirements of the contract which enables a proper evaluation of the work content, its costing and of the proposed planning.  The WBS will also constitute a framework for the management of a subsequent contract.  It is therefore important that the descriptive terminology for tasks and products be consistent with that used in the ITT/RFQ and in the other parts of the tender.

2. Concept

Various levels of WBS can be identified, breaking down the proposed effort into greater of lesser detail.  The various levels are described below.  The Special Conditions of Tender will specify the appropriate level of breakdown for subject of the ITT/RFQ.

It should be noted that some tasks, such as Project Management, are common to all contracts, and must be incorporated into the WBS, while others derive from the specific nature of the work.  Subject to any specific requirements of the ITT/RFQ, a bidder should establish the WBS that most clearly identifies the work proposed.

The lowest level of WBS used is referred to as the Work-Package (WP) level, and for each WP a Work Package Description as per PSS-A20 (Attachment 1 hereto) shall be completed.

Attachment 2 hereto gives an example of a typical WBS for a small or medium scale study or development.

3. Specific requirements for various types of contract


4. Contents of the proposal - WBS deliverables

With his offer the tenderer shall submit:

- a WBS properly drawn, and coherent in organisation and contents with the rest of his proposal;
- a narrative explanation of his WBS if this is useful to its understanding;
- as many WP descriptions (PSS-A20) as there are WP's at the level required, in accordance with the instructions given in Attachment 1.

ANNEX 5(1) - Attachment 1
 INSTRUCTIONS FOR COMPLETING FORM PSS-A20








The purpose of this form is to obtain a detailed description of the work to be performed under this Work Package (WP).

Unless specified otherwise in the Special Conditions of Tender, WP descriptions are to be supplied at the task/equipment level.  Each form shall contain the following information: