1. Overview of contracts Ingrid Mariën-Dusak
Information Day for Coordinators
17 July 2003

2. Overview Legal framework and general principles Contract structure
Conclusion of the contract
Evolution of the consortium
Reporting
Amendments
Collective responsibility
Controls and sanctions
Consortium agreement
Intellectual property rights
Special clauses
Specificities of instruments

3. Legal Framework EC TREATY CONTRACTS INTERNATIONAL AGREEMENTS
PARTICIPATION AND DISSEMINATION RULES
FRAMEWORK PROGRAMME
CONTRACTS
SPECIFIC PROGRAMMES
GUIDELINES ON
EVALUATION AND
SELECTION
PROCEDURES
Other relevant
EC Regulations FINANCIAL REGULATION
WORK PROGRAMMES & Calls for proposals

4. General principles Reflect requirements of the Legal Framework
Simplification
No different categories of contractors
Reduction of the number of contracts
Greater flexibility
Evolution of the project
Composition and changes to consortium
Greater autonomy for participants = Collective approach

5. Proposal submission and evaluation
Contract structure
Proposal submission and evaluation
05/04/2017
Core contract (standard with specifics of project) (possibly including special clauses)
Annex I (technical tasks - the “project”)
Annex II General Conditions (applicable to every instrument)
Annex III Instrument specific provisions (specific to instrument)
Presentation IP - Heysel

6. Annex II Part A Implementation of the Project
Section 1 Implementation and deliverables
Section 2 Termination of the contract and responsibility
Part B Financial Provisions
Section 1 General financial provisions
Section 2 Controls, recoveries and sanctions
Part C Intellectual Property Rights

7. Contract structure & instruments
Core contract Annex II Annex III
IP Yes
NoE Yes
STReP
CA Common Common None
SSA
SME Yes
I3 Yes

8. Contract structure Annex IV - Form A Annex V - Form B
Consent of contractors identified in the core-contract (article 1.2) to accede to the contract. To be signed by the contractor concerned and by the coordinator.
Annex V - Form B
Accession of new legal entities to the contract. To be signed by the new contractor concerned and by the co-ordinator
Annex VI - Form C
Financial statement per activity. Specific to each Instrument and/or type of action. To be filled periodically by each contractor

9. Contractors
New
Every legal entity that contributes to the project (incl. Project Managers)
General Rule: Participant = contractor Every legal entity contributing to a project must have a contractual link with the Community
Exceptional cases: subject to very restrictive rules
Third parties identified in Annex I
Subcontractors

10. Co-ordinator A contractor among other contractors No additional rights
BUT
Additional obligations
Administrative tasks: single entry point for communication, payments, reporting etc.

11. Conclusion of the contract 1/2
The contract will be concluded between the Commission and all participants in an indirect action (the ‘Consortium’).
It will enter into force upon signature by the Commission and the contractor acting as ‘Co-ordinator’ of the project.
The other participants identified in the contract will accede to it in accordance with Article 2, assuming the rights and obligations of the contract with effect from the date on which it enters into force.

12. Conclusion of the contract 2/2
Within a fixed time-limit after the entry into force of the contract, the Coordinator must send to the Commission the Accession Form A to be obtained from each of the participating contractors.
Should any named participant fail or refuse to accede to the contract within the deadline, the Commission is no longer bound by its offer. It may terminate the contract.
The Consortium may propose appropriate solutions to the Commission to ensure the implementation of of the project, including the accession of other alternative legal entities.

13. Evolution of the Consortium 1/2
The Consortium may be enlarged to include other legal entities, which shall accede to the contract by means of Accession Form B.
The Commission is deemed to have accepted this legal entity as a contractor to the Consortium if it does not object within six weeks of receipt of Form B (Tacit Approval).
Any acceding participant shall assume the rights and obligations of the contractors as established by the contract with effect from the date of its accession to the contract.

14. Evolution of the Consortium 2/2
Any contractor may request the termination of its participation in the contract.
The consortium may request the participation of any contractor.
Tacit approval of such termination after six weeks.
Contractors leaving the Consortium shall be bound by the provisions of the contract regarding the terms and conditions applicable to the termination of their participation.

15. Entry into force and duration
Contract enters into force upon signature of Co-ordinator and Commission
Project begins on date established in the contract
Implementation and payment phases relating to the project must be completed by the final implementation date of the contract
Contract completed when the rights and obligations of all parties to the contract have been met
Some provisions continue to apply after the final implementation date

16. Reporting 1/2
Submission of periodic reports and deliverables within 45 days of the end of the reporting period
periodic activity report
periodic management report (including justification of resources deployed, Form C “Financial Statement”, consolidated summary financial report)
report on distribution between contractors
supplementary reports required by Annex I
audit certificate when required c
Amendments - tacit for approval of project activity reports and for consortium changes
Special conditions*
* under development

17. Reporting 2/2
Submission of final reports within 45 days after the end of the project. Delay may be increased by 45 days at the request of the consortium
final activity report
final management report
supplementary reports
report on the distribution of the Community financial contribution between contractors made after the end of the project

18. Submission and approval of reports
Electronic submission of reports and deliverables. In addition, submission of originals of these documents and of audit certificates by registered mail with acknowledgement of receipt.
Reception date of submission by mail prevails
Approval of any report does not imply exemption from any audit or review

19. Amendments
Requests for amendments shall be submitted by registered mail with acknowledgement of receipt
Requests for amendments are submitted by the Coordinator on behalf of the consortium
Commission undertakes to approve or reject any amendment request within 45 days of receipt
No tacit approval of amendment request, except for modification or evolution of the consortium
All amendments shall be in writing

20. General conditions of the contract
Performance obligations for consortium, contractors, co-ordinator, Commission
Force Majeure
Suspension and prolongation
the Consortium can propose to suspend the project in case of execution experiences strong difficulties or is uneconomic, if force majeure or exceptional circumstances the project
the Commission may suspend the project when the consortium is not performing satisfactory, in order to re-negotiate and propose necessary amendments
Termination
any contractor may request the termination of its participation/the Consortium may request to terminate the participation of any contractor
in both cases “Where the Commission does not object within six weeks, it is deemed to have approved the request”
by the Commission in case legal, financial, organisational or technical change, change of control, ...

21. Collective Responsibility of Contractors
1. Technical Collective Responsibility - Article II.17
Each contractor obliged to take all necessary measures to attain the objectives of the project and to carry out the work incumbent on the defaulting contractor
2. Financial Collective Responsibility - Article II.18
Should either the contract or participation of a contractor be terminated and any contractor does not honour the reimbursement of the amount due by that contractor, the Consortium is responsible to reimburse that amount to the Commission
Amount to be recovered to be allocated between the remaining contractors in accordance with their pro rata share in the project

22. Controls and Audits Controls Audits
Periodic activity reports (including plan for dissemination and use)
Periodic financial reports
Supplementary reports if foreseen (in Annex I or III)
Final reports covering the whole project duration
Audits
Scientific, technological and financial audits
Annual monitoring by Commission with external experts (particularly for IP and NoE)
Ethical or other reviews
Contractors right to refuse particular expert

23. Sanctions
Irregularity is grounds for exclusion from evaluation or selection procedure
Liquidated damages for overclaims
Administrative or financial sanctions foreseen in the Financial Regulation
Financial penalties for grave/repeated breach of contractual obligations
Without prejudice to any civil remedies or criminal proceedings
Recovery orders

24. The Consortium Agreement 1/3
Characteristics:
Private Contract between the contractors
Provides for internal operation and management of the consortium
Commission does not review it or approve it
However, provisions must not conflict with provisions of EC Contract
May be modified/amended after entry into force
Non-binding guidelines published by the Commission

25. Proposal submission and evaluation
The Consortium Agreement 2/3
Proposal submission and evaluation
05/04/2017
Why:
Mandatory unless excluded by the call for proposals
Management of the consortium
distribution of funds paid to the consortium (via the co-ordinator)
no automatic pre-allocation of the funds among contractors: to be decided by the consortium
evolution of the work programme
organisation of work to be carried out (sub-projects)
reports presented and submitted by the consortium (via the co-ordinator)
evolution of the consortium’s composition (modification)
IPR issues: should be agreed before signature of the contract (mandatory for specific pre-existing know how exclusion)
Global Risk Management: collective responsibility - technical implementation of the action = collective responsibility of the contractors consortium to deal with breach of contract / non-performance and imposition of financial collective responsibility and any financial security necessary for same
Presentation IP - Heysel

26. Proposal submission and evaluation
The Consortium Agreement 3/3
Proposal submission and evaluation
05/04/2017
Issues:
Decision-making process and dispute settling
IPR
ensure that agreements necessary for the implementation of the project have been reached - exclusion of background/sideground
initiate common strategy on dissemination/use/ protection + search for industrial partners
Global Risk Management
establish internal auto-control & a checks and balances mechanism (periodic distribution of the funds, progress reporting, etc.)
specific issues regarding competitive calls, costs less than EC funding, etc. for specific instruments
Presentation IP - Heysel

27. Intellectual Property Rights (IPR) 1/3
Developed on the basis of
feedback from FP 5
features of the “new instruments”
contractors may leave/join during the project
“larger” projects
Principles
consistency with FP 5 (similar concepts)
simplification
new same IPR rules for ± all instruments (fewer exceptions)
new same IPR rules for all contractors
increased certainty, in particular regarding access rights (restricted to what is necessary)
increased emphasis on the management of knowledge and IP (especially new instruments)

28. Intellectual Property Rights (IPR) 2/3
General concepts:
definitions: no major changeS compared to FP 5
“knowledge”, “pre-existing know-how”, “use”, “dissemination”, …
ownership: no major changes compared to FP 5
resides with the contractor (including JRC) generating knowledge
transfer of ownership: prior notice to other participants + Commission (possible objection within 30 days)
public procurement (Commission owns results)
Protection
where there is commercial application and subject to legitimate interests, it is a requirement to protect
where there is no protection, Commission may protect

29. Intellectual Property Rights (IPR) 3/3
General concepts:
Publication
allowed if not detrimental to protection
prior notice to Commission + other contractors (possible objection within 30 days)
Use/dissemination
obligation to use and disseminate
Commission may disseminate itself if needed

30. FP6 System of Access Rights
Access rights to
pre-existing know-how
knowledge
If a contractor needs them for carrying out its own work under the project
For carrying out
the project
Royalty-free
unless otherwise agreed before signing the contract
If a contractor needs them for using its own knowledge
For use
(exploitation + further research)
Non-discriminatory conditions
to be agreed
unless otherwise agreed
before signing the contract
Possibility for participants to
agree on exclusion of specific
pre-existing know-how before
signature of the contract (or
before entry of a new participant)

31. Article 9 Special clauses *
Participation by the JRC
EEIG, JRU and SME Associations
International organisations
Complementary contracts
Sole contractor clause for SSA that may become pluri-contractors
Sole contractor that cannot be pluri-contractors
Mid-term review clauses
Payment of the contractor’s pre-financing, subject to obtaining a financial guarantee
Exoneration of Financial collective responsibility
Reimbursement of less than 100% for SSA
Signature of a consortium agreement as prerequisite to beginning of project
Ineligibility of costs incurred in relation to an activity
* draft

32. Article 9 Special clauses
Increase of the EC financial contribution - only for SSA under article 9.2.a
Contractors with flat rate overheads of less than 20%
Contractors with no eligible costs (e.g. Third countries)
Ethical rules
Clinical research
Specific support actions involving Transnational Acces
Cases where other enterprises and/or end-users participate
Delayed accession of contractors established in a new Member State to contracts entering into force between the and the due to Article 32 of the Accession Treaties
Projects with only one reporting period

33. Annex III - Integrated projects
Competitive calls
Publication requirements
Evaluation of offers
Accession of new contractors
Objections by the Commission within 6 weeks
Contract amendment
Updating the implementation plan
Annual review

34. Annex III - Networks of excellence
Community financial contribution
Competitive calls
Updating the joint programme of activities
Annual review
Failure of annual review