CALL FOR TENDER NO HOME/2010/ISEC/PR/038-A1...6. Lot 5: Study on the implementation of the IAEA...

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EUROPEAN COMMISSION DIRECTORATE-GENERAL HOME AFFAIRS

Brussels,

CALL FOR TENDER NO. HOME/2010/ISEC/PR/038-A1

(open procedure)

Dear Sir/Madam,

1. The European Commission launch a call for tender on Studies related to the implementation of the EU Chemical Biological Radiological or Nuclear (CBRN) Action Plan and invite tenderers to bid for 10 separate Lots. Each tenderer may bid for one or several Lots. In case that a tenderer decides to apply for several Lots, separate tenders should be submitted providing complete information (including administrative, technical and financial parts) for each Lot, as required in the attached specifications.

This invitation to tender follows the publication of:

the contract notice in OJEU 2011/S 35-56850 of 19/02/2011

2. If you are interested in this contract, you must submit a tender in triplicate, in one of the official languages of the European Union.

Tenders must be:

(a) either sent by registered mail or by private courier

The tender must be sent by registered mail or by private courier, dispatched not later than 04/04/2011 (the postmark or the receipt issued by the courier service serving as proof of the dispatch) to the following address:

By registered mail European Commission Directorate-General Home Affairs Mr Michel Parys Unit A4: Financial support – Internal Security Office LX-46 6/020 B - 1049 Brussels Belgium

http://ted.europa.eu/udl?uri=TED:NOTICE:5985-2011:TEXT:FR:HTML&src=0&tabId=1//n

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By private courier European Commission Directorate-General Home Affairs Mr Michel Parys LX 46 6/020 Avenue du Bourget, 1 B-1140 Brussels (Evere) Belgium

(b) or delivered by hand

Tenders must be delivered by hand at the Central Mail of the European Commission by 04/04/2011 not later than 4 p.m. (Brussels time), at the following address:

European Commission Directorate-General Home Affairs Mr Michel Parys LX 46 6/020 Avenue du Bourget, 1 B-1140 Brussels (Evere) Belgium

In this case, a receipt must be obtained as proof of submission, signed and dated by the official in the Commission's central mail department who took delivery. The department is open from 08.00 to 17.00 Monday to Thursday, and from 8.00 to 16.00 on Fridays. It is closed on Saturdays, Sundays and Commission holidays.

3. Tenders must be placed inside two sealed envelopes with the reference number of the call for tender, one inside the other. The inner envelope should be marked:

Call for tenders No. HOME/2010/ISEC/PR/038-A1

LOT N° XX

not to be opened by the internal mail department

LX 46 6/020

Or

Appel d’offres No. HOME/2010/ISEC/PR/038-A1

LOT N°XX

à ne pas ouvrir par le service du courrier LX 46 6/020

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If self-adhesive envelopes are used, they must be sealed with adhesive tape and the sender must sign across this tape.

Non-respect of these instructions may lead to the exclusion of the tenderer.

4. Tenders will be opened at 10 a.m. on 12/04/2011 at 46 Rue du Luxembourg , office 6/SDR 103 -1040 Brussels).

This opening session will be public. All Lots will be opened during the same opening session. Each tenderer may be represented by not more than one person. At the end of the opening session, the Chairman of the opening committee will indicate the name of the tenderers and the decision concerning the admissibility of each offer received. The prices mentioned in the bids will not be communicated.

5. The specification, listing all the documents that must be produced in order to tender, including supporting evidence of economic, financial, technical and professional capacity and the draft contract are attached.

6. Tenders must be signed by the tenderer or his duly authorised representative and perfectly legible so that there can be no doubt as to words and figures.

7. Validity period of the tender: six months as from the final date for submission of tenders mentioned under point 2 above.

8. Submission of a tender implies acceptance of all the terms and conditions set out in this invitation to tender, in the specification, in the draft contract and, where applicable, waiver of the tenderer's own general or specific terms and conditions. The terms and conditions are binding on the tenderer to whom the contract is awarded during the performance of the contract.

9. Contacts between the awarding authority and tenderers are prohibited throughout the procedure except in exceptional circumstances and under the following conditions only:

Before the closing date for submission of tenders

• At the request of the tenderer, the awarding authority may provide additional information solely for the purpose of clarifying the nature of the contract.

Requests for additional information must be sent in writing not later than six calendar days before the closing date for submission of tenders to the following address:

European Commission Mr Frederic Knechciak Unit A4: Financial support – Internal Security LX 46 6/020 B-1049 Brussels Belgium Fax (+ 32 2) 29 98215 e-mail: [email protected]

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Further information will be sent simultaneously to all tenderers who have requested the specification in writing, where this is appropriate. Tenderers who have downloaded the documents from the Directorate-General Home Affairs website (DG HOME) are invited to consult this site regularly until the deadline for submission.

After the opening of tenders

If a tender requires clarification, or if there is a need to correct material errors which have occured in the drafting of the tender, the Commission may take the initiative and contact the tenderer(s). Such contact shall not lead to the conditions of the tender being altered in any way.

10. This invitation to tender is in no way binding on the Commission. A commitment will come about only when a contract with the successful tenderer has been signed.

Until a contract is signed, the awarding authority may decide not to award a contract or to cancel the tendering procedure, without the candidates or tenderers being entitled to claim any compensation. Where appropriate, the decision will be substantiated and brought to the attention of the tenderers.

11. The costs of dispatching the documents and in participating in this call for tender shall be borne by the tenderer.

12. Tenderers will be informed of whether their tenders have been accepted or rejected.

13. The follow-up of your response to the invitation to tender will require the recording and further processing of personal data (i.e. name, address, CV, etc.). This data will be processed in accordance with the requirements of Regulation (CE) 45/2001 on the protection of individuals with regard to the processing of personal data by Community institutions and bodies and on the free movement of such data. Unless if otherwise stated, replies to questions and personal data requested are necessary for the purpose of assessing your tender (according to the specifications of the invitation to tender) and will only be processed within DG HOME as data controller, for this purpose. You may, upon request, have your personal data sent to you and rectify any inaccurate or incomplete particulars. Should you have any queries concerning the processing of your personal data, please address them to the entity acting as data controller within DG HOME. As regards the processing of your personal data, you have the right to bring the matter before the European Data Protection Supervisor at any time.

14. You are informed that for the purposes of safeguarding the financial interest of the Communities, your personal data may be transferred to internal audit services, to the European Court of Auditors, to the Financial Irregularities Panel and/or to the European Anti-Fraud Office (OLAF).

Tenderers and, if they are legal entities, persons who have powers of representation, decision-making or control over them, are informed that, should they be in one of the situations mentioned in:

- the Commission Decision of 16.12.2008 on the Early Warning System (EWS) for the use of authorising officers of the Commission and the executive agencies (OJ, L 344, 20.12.2008, p. 125), or

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- the Commission Regulation of 17.12.2008 on the Central Exclusion Database – CED (OJ L 344, 20.12.2008, p. 12),

their personal details (name, given name if natural person, address, legal form and name and given name of the persons with powers of representation, decision-making or control, if legal person) may be registered in the EWS only or both in the EWS and CED, and communicated to the persons and entities listed in the above-mentioned Decision and Regulation, in relation to the award or the execution of a procurement contract or a grant agreement or decision.

Yours faithfully,

Reinhard Priebe

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TENDER SPECIFICATIONS ATTACHED TO THE INVITATION TO TENDER

Invitation to tender No. HOME/2010/ISEC/PR/038-A1 concerning

Studies related to the implementation of the EU CBRN Action Plan

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TERMS OF REFERENCE

Tender HOME-2010-ISEC-PR-038-A1

Studies related to the implementation of the EU CBRN Action Plan

TABLE OF CONTENTS 1. Introduction and background

2. Lot 1: Study on the applicability of existing chemical industry safety provisions to enhancing security of chemical facilities

3. Lot 2: Study on the analysis of the penal legislation concerning CBRN terrorism and acts of WMD proliferation by non-state actors

4. Lot 3: Study on the feasibility of the possibility of using the delivery documentation mechanism to better understand and monitor the supply chain

5. Lot 4: Study on the identification of good practices with regard to dialogue between facility security managers and law enforcement, including the topic of providing security advice

6. Lot 5: Study on the implementation of the IAEA Guidance on the Import and Export of Radioactive Sources by the EU Member States and on the need and feasibility to draw up common EU criteria for authorising imports and exports from and to third countries

7. Lot 6: Study on the current status of radioactive sources in the EU, on the origin and the consequences of the loss of control over radioactive sources and on successful strategies concerning the detection and recovery of orphan sources

8. Lot 7: Study on transport patterns of radioactive sources

9. Lot 8: Stocktaking study on good practices on reporting of suspicious transactions in relation to CBRN materials

10. Lot 9: Study on the availability of high-risk chemicals to the general public and in particular on the specific risks associated with trade of chemicals over the internet

11. Lot 10: Stocktaking study on good practices in CBRN transport security

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I. INTRODUCTION AND BACKGROUND

Over the past ten to fifteen years, the threat of a terrorist group acquiring Chemical, Biological, Radiological or Nuclear (CBRN) materials has led governments and international organisations to adopt far-reaching regulations and programmes to defend populations against the associated risks. Although the number of incidents involving such materials has been limited, it is clear that no public authority can afford to ignore this threat given its potentially very significant consequences in terms of human life and economic effects.

Tackling terrorist access to CBRN material is currently considered a key priority for the European Union. This is acknowledged by the European Union Counter-Terrorism Strategy adopted by Council on 1 December 2005, and by the “EU Strategy against proliferation of weapons of mass destruction and their means of delivery (WMD)” adopted by the European Council on 12 December 2003.1 In addition, the JHA Council adopted specific Conclusions in 2007 that called for further EU level work on CBRN security.2

In response to the Council conclusions, the Commission set up a CBRN Task Force that concluded its work with a set of recommendations3 paving the way for the CBRN Action Plan. As part of a wider CBRN Policy package the Commission published this document in June 2009.4

Following the adoption by the Commission, the EU CBRN Action Plan was discussed in the Council of the EU and subsequently approved in November 2009.5 Following the approval of the CBRN Action plan by the Council of the EU, this Action Plan is the basis of EU policy to enhance CBRN security. The overall goal is to reduce the threat of and damage from CBRN incidents of accidental, natural or intentional origin, including acts of terrorism.

In order to take the implementation of the EU CBRN Action Plan forward and to accompany its implementation, the Commission established the CBRN Advisory Group (and specific subgroups) in 2010, bringing together public authorities, technical experts and relevant stakeholders, including, where appropriate, the private sector.

In order to support the work of the Commission, the Advisory Group and its sub-groups and the implementation of the EU CBRN Action Plan in particular, the Commission has decided to tender for the studies indentified in the present document. Each of these studies relates to one or more of the Actions to be taken forward under the EU CBRN Action Plan, and each is a separate lot under this Terms of Reference.

Tenderers can apply for each study/lot separately, or for more than one study/lot at the same time. Proposals to combine lots can also be made, but in principle each study should be taken forward separately and within its own context. The award criteria for all proposals are given a the end of this document in Section 11.

1 Council 15708/03 and SN 400/03, no 68. See also infra, paragraph 7. 2 Council 16589/07, of 17 December 2007. 3 Report of the CBRN Task Force, January 2009. 4 Communication from the Commission to the European Parliament and the Council on Strengthening

Chemical, Biological, Radiological and Nuclear Security in the European Union – an EU CBRN Action Plan. COM(2009) 273 final.

5 Council 15505/1/09.

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I.1. Lot 1: study on the applicability of existing chemical industry safety provisions to enhancing security of chemical facilities

I.1.1. Introduction

In 2006, the Commission proposed a European Programme for Critical Infrastructure Protection (EPCIP) – designed to raise critical infrastructure protection capabilities across all EU Member States and in all relevant sectors of economic activity. Critical infrastructure is defined as an asset which is essential for the maintenance of vital societal functions.

Critical Infrastructure can be damaged, destroyed or disrupted by natural disasters or deliberate acts such as terrorism, criminal activity and malicious behaviour. The protection level of Critical Infrastructure within Member States and the EU should be adequate, and, to the extent possible, the detrimental effects of Critical Infrastructure disruptions on society and individual citizens should be limited.

A key element of EPCIP – the Directive on European Critical Infrastructures (ECI Directive)6, adopted at the end of 2008, establishes a procedure for the identification and designation of European Critical Infrastructures and a common approach to assess whether it is necessary to improve the protection of such infrastructures.

The chemical sector is one of the sectors being addressed by the EPCIP, but it is not directly covered by the ECI Directive. As the ECI Directive does target the energy sector, some facilities handling large amounts of chemicals, such as refineries, are addressed. The ECI Directive is currently implemented by the Member States and a review will begin in January 2012. As a result of the review the chemical sector could be added as one of the new target sectors in a future modified Directive.

I.1.2. Context of the Study

This study will assess the possible impact of existing safety rules and initiatives (both of a binding and non-binding nature) on enhancing chemical facility security.

On the one hand facility security as understood here should aim at preventing malefactors from misappropriating high-risk materials from chemical facilities. On the other hand chemical facilities are very often important or even vital infrastructures and their functions need to be protected against malicious behaviour.

Binding rules regarding chemical facility safety at EU level have already been established by way of the Seveso-II Directive7 with regard to facilities handling chemicals above a certain threshold. The Directive is goal-oriented, aiming at the prevention of major accidents and the limitation of their consequences to man and the environment. It requires the operators to take all measures necessary to this end and it sets also a number of requirements to the competent authorities of the Member States.

The main difference between safety and security rests with the role of the “human factor”. In Seveso-II the "human factor" is mainly taken into account in relation to non-intentional – i.e.

6 Council Directive 2008/114/EC from 8 December 2008

7 Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances, amended by 105/2003/EC.

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accidental – actions ("human failure"). In the security context the "human factor" relates to intentional malicious actions.

Nevertheless according to preliminary estimates8 80% of the existing safety measures under Seveso-II would also be instrumental in terms of raising security. Moreover, in their implementation of the Directive some Member States even went beyond the minimal requirements of the Directive and established additional security-relevant elements. In any case to identify the remaining security needs these estimates must be put on the basis of a sound factual analysis. It should be also noted that the Seveso-II Directive is currently under revision. At this stage it is not intended to extend the scope of the Directive to directly integrate security issues.

The chemical industry in the EU is actively engaged in dialogue with Member State and EU authorities. Industry level self-regulation exists to a certain degree for safety purposes, but may not specifically address security issues. As a first step, the potential of these voluntary measures to enhance security should be analysed. The study could also look into the plans of the chemical industry to implement the security side of the Responsible Care programme in the EU.

A certain number of chemical facilities are considered by national authorities as national critical infrastructure and will fall within the remit of specific national programmes that aim already at improving security standards.

A thorough assessment of the security of chemical plants in all EU Member States has not yet been conducted. So far it is however clear that there are no comprehensive rules dealing with the security of chemical plants which would be applicable in all EU Member States and to all facilities. Raising security standards of chemical facilities across all EU Member States is thus a challenge for the future. This study should contribute to this end.

I.1.3. Objectives and scope

The objective of this study is to identify and evaluate all existing chemical industry safety provisions in the EU Member States and industry best practice, with a view to enhancing chemical facility security.

The study must analyse:

• The existing chemical industry safety provisions (of a binding and non-binding nature) • The applicability of these provisions to enhancing chemical facility security • Possibly existing security gaps as a result of the analysis above • Possibly existing rules and measures addressing these identified security gaps

The study should analyse all relevant levels at which rules are set and/or need to be implemented:

• International (e.g. OECD/"Guiding Principles for Chemical Accident Prevention, Preparedness and Response", UNECE/"Convention on the Transboundary Effects of Industrial Accidents", "Responsible Care")

• EU level (e.g. Seveso-II) • National (e.g. national implementation of Seveso-II, national practices) • Industry best practices • Sub-national if and when relevant

8 Such as in the projects IMPROVE (JLS/2008/CIPS/011, Improve knowledge of effective critical

infrastructure protection and facilitate exchange of experiences and best practices) and SECURE-SITE (EPCIP-2006/30-CE-0087857/00-07, Evaluation and improvement of security measures in industrial installations).

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As regards the analysis of chemical safety provisions the study should be as comprehensive as possible. The following presents a non-exhaustive list of areas of possible relevance:

• Safety policy (incl. security elements covered) • Safety Strategy and Control Framework (incl. security elements covered) • Safety reporting (incl. security elements covered) • Safety management systems (incl. security elements covered) • Hazard Identification and Risk Assessment • Organisation management, roles and responsibilities • Inspections, audits, reviews • Maintenance and repairs (incl. screening of personnel) • Design, layout, construction of facilities • Land-use Planning • Procedures, personnel, internal communication, education and training, human factors • Emergency preparedness and planning • Communication with and information to the Public • Incident reporting and analysis

The potential contractor should consider in its bid and in the inception report any other areas in addition to those covered in these terms of reference to make sure that the study covers all possible angles and issues relevant to chemical facilities.

Finally the contractor must also provide recommendations on how to address any security deficits that may be identified.

The use of the results will be decided on by the Commission after careful evaluation. The outcomes may be used in different ways: policy making, proposals for new legislation or industry standards, proposals of amendments to existing legislation or industry standards, evaluation of policies and of allocation of financial resources, etc.

I.1.4. Methodology, Analysis and Conclusions

The contractor must propose the methodology that it considers the most suitable to carry out the work and describe it in detail in the proposal, taking into consideration the following elements:

• The study must treat the subject in the most comprehensive manner possible, through analysis of regulations, standards or other instruments of regulation and literature, interviews with practitioners, collection of empirical data, etc.

• The study should draw on evidence gathered from relevant actors, in order to achieve a complete list of relevant provisions and in order to evaluate their practical implementation.

• The bidder should consider visits to practitioners in order to be able to assess the practical relevance of the situation across the EU. The costs of such visits should be included in the overall costs of the study.

• The study must cover at least 15 Member States and the covered countries must altogether represent at least two thirds of the EU population. There must be a good mix of big and small Member States. The contractor must indicate which Member States it intends to cover.

• However, the most desirable coverage of the study is for all Member States of the European Union. Proposals which cover more than the minimum 15 Member States will

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receive higher marks in the evaluation procedure.

• When several Member States share similar features, the study must provide a consolidated view at the level of clusters of Member States.

• The study covers a very broad area of concern. The proposed methodology will have to:

• ensure that the results of the study are presented in a structured and understandable manner;

• elaborate on how to tackle the complexity of the study in practice and how to achieve the desired results.

I.1.5. Proposal

The technical description and the work plan must be described in a clearly identified section in the offer. These sections should describe how the work will be organised including a description of the tasks and processes foreseen to meet the objectives of the study. The contractor is invited to propose and justify, if relevant, additional elements to be included in the study to ensure the appropriate achievement of the objectives.

The technical description must also describe how the contractor will engage with the stakeholders during the study. It must contain a detailed planning of the resources associated with the tasks and CVs of the experts involved in the study. A time plan for the development of the work must also be included and illustrated with clear charts.

I.1.6. Duration

The duration of the tasks must not exceed 10 months.

I.1.7. Reports and documents to be submitted

The contractor shall be required to submit the following reports:

An initial report within two weeks of the date of signature of the contract, to detail the proposed approach including: envisaged information collection activities, type of field-work and case studies, geographical scope of information gathering, key informants and stakeholders, analytical tools, and other methodological considerations. The initial report must include a clear work programme with estimated timelines.

An interim report four months after the start of the contract describing the work done and the results achieved to date. The report should provide preliminary conclusions related to the scope of the study and should include the structure for the final report, and an updated work-plan (based on the experience of the first 4 months) ensuring the submission of the final report within the contractual deadline.

The interim reports should contain at least the following information:

• the results obtained and a comparison with the objectives as defined by the Commission request (Terms of Reference);

• information on the remaining work to be carried out;

• any particular problems encountered that would have a notable effect on the tasks to be carried out;

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• information and clear references on sources of information used or to be used and the value of their methodologies as appropriate;

• clear indications and detailed planning of the work to be carried out during the rest of the period for the completion of the tasks.

A draft final report should be prepared within nine months of the date of signature of the contract. The contractor shall comply with any request by the Commission to attend a final assessment meeting at the European Commission within one week of the submission of the draft final report.

The draft final report and final report shall be in English and shall be in 4 bound paper copies including annexes, in Word format as well as in PDF format suitable for publication by the Commission’s services on the Commission website. All deliverables will be in English.

The final report shall include:

• an executive summary setting out the conclusions of the report;

• the results obtained and a comparison with the objectives set out in the proposal;

• information and clear references on sources of information used and the value of their methodologies as appropriate;

• a summary of the resources spent on the specific contract, including details of travel expenses.

I.1.8. Terms of approval of reports

After receipt of each report mentioned above, the Commission will have 30 days in which to approve it, with or without comments or reservations, or to reject it and request a new report. If the Commission does not react within this period, the report shall be deemed to be approved. Where the Commission requests a new report because the one previously submitted has been rejected, this must be submitted within 15 days. The new report shall likewise be subject to these provisions.

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I.1.9. Meetings with the Commission

Inception meeting

An inception meeting will be organised by the Commission’s services at the Commission’s premises in Brussels within 2 weeks after the signature of the contract by the last contracting party, to finalise the work-plan and the methodology for the work to be undertaken, and to discuss and clarify possible open questions and issues. A draft of the inception report shall be made available to the Commission’s services 1 week in advance of the meeting. The contractor will have to finalise the inception report on the basis of the outcome of the inception meeting. The inception report, together with the minutes of the meeting, shall be made available to the Commission’s services within 2 weeks after the meeting.

Interim meeting

An interim meeting during which the contractor will present the interim findings will be held in the course of the fourth month after signature of the contract by the last contracting party. It will be organised by the Commission’s services at the Commission’s premises in Brussels. A draft of the interim study report shall be made available to the Commission’s services 2 weeks in advance of the meeting. The contractor will have to finalise the interim study report on the basis of the outcome of the interim meeting. The interim study report, together with the minutes of the meeting, shall be made available to the Commission’s services within 3 weeks after the meeting.

Final meeting

A final meeting during which the contractor will present the final findings and proposed conclusions will be held within 9 months after signature of the contract by the last contracting party. It will be organised by the Commission’s services at the Commission’s premises in Brussels. A draft of the final study report shall be made available to the Commission’s services 3 weeks in advance of the meeting. The final report will describe the work accomplished and the results obtained when carrying out the contract. The final report must contain a relevant executive summary. The final report will include recommendations and specifications as requested under the objectives heading. The contractor will have to finalise the final study report on the basis of the outcome of the final meeting. The final study report, together with the minutes of the meeting, shall be made available to the Commission’s services within 3 weeks after the meeting.

Moreover, the Commission might ask the contractor to participate at a meeting with representatives of the relevant authorities and sectors, such as the CBRN Advisory group to discuss the final report.

The contractor will bear the costs of attendance of its staff at all the above meetings.

I.1.10. Work Conditions

Place of work

The work shall be carried out on the contractor's premises.

Missions

The contractor may need to carry out missions in order to obtain information necessary for the study. Steering meetings with the Commission will in principle be held in Brussels. The cost of such missions must be integrated in the overall costs of the study.

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Workshops, Seminars

Before the contractor may provide the draft final report to the Commission a workshop with stakeholders (authorities, industry) must be organised in order to discuss the draft.

Moreover, in general the contractor may organise such workshops and networking activities in order to reinforce the exchange of information with external experts or stakeholders. The contractor will invite the Commission to such activities and will report specifically on the results. The contractor will bear the costs of organisational efforts to set up such events including speakers' fees, costs of the conference room, lunch and translation costs. The contractor shall be responsible for the agenda drafting and planning, selection and invitation of participants and speakers.

Confidentiality

The final results of the study may be classified. The tenderer should therefore be able to demonstrate the capacity to handle classified documents (personnel working on the classified parts of the study) as well as facilities to handle such sensitive materials. The contractor and its staff shall in any case sign a declaration of confidentiality.

I.1.11. Maximum budget

The maximum amount available for this study is 300 000 Euro.

The budget is indicated in line with the principle of sound financial management, and the principles of economy and value for money shall prevail.

While setting their travel budgets, tenderers are invited to take into account the requirements and the geographical coverage needed.

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I.2. Lot 2: study on the analysis of the penal legislation concerning CBRN terrorism and acts of WMD proliferation by non-state actors

I.2.1. Introduction

CBRN security and/or proliferation of weapons of mass destruction (WMD) are addressed by a considerable number of conventions, such as universal conventions in the framework of the United Nations, civil aviation conventions, and maritime conventions.

For the European Union the European Council adopted the “EU Strategy against proliferation of weapons of mass destruction and their means of delivery (EU WMD Strategy)”9. In December 2008, five years after the adoption of the EU WMD Strategy, the Council adopted "New lines for action by the European Union in combating the proliferation of weapons of mass destruction and their delivery systems (New Lines for Action)". They are designed to increase the effectiveness and impact of the EU's approach to non-proliferation.

The New Lines for Action are not intended to replace the EU WMD Strategy, but rather to increase its efficiency by achieving greater coordination within the EU in order to maximise the impact of EU action.

In the framework of the EU CBRN Action Plan, action H.67 asks the Commission to analyse the criminal law provisions enacted in the Member States concerning CBRN terrorism.

I.2.2. Context of the Study

Most of the universal conventions related to terrorism and WMD identify certain actions to be considered as offences, require state parties to criminalise these offences and to establish jurisdiction over offenders and to prosecute or extradite them.

In addition to these international conventions the UN Security Council resolutions (UNSCR) play an important role. According to UNSCR 1373 all States must eliminate the supply of weapons to terrorists. UNSCR 1540 asks States specifically to prohibit non-state actors to manufacture, possess, develop, transport or use WMD or any means of delivery, in particular for terrorist purposes.

The Chemical Weapons Convention (CWC) requires State Parties to adopt the necessary measures to implement their obligations under the Convention, including:

• prohibiting natural and legal persons anywhere on their territory or in any other place under their jurisdiction as recognised by international law from undertaking any activity prohibited to a State Party, including enacting penal legislation with respect to such activity (subparagraph 1(a) of Article VII);

• not permitting, in any place under their control, any activity prohibited to a State Party by the Convention (Article VII, subparagraph 1(b));

• extending their penal legislation to any activity prohibited by a State Party undertaken anywhere by natural persons, possessing their nationality, in conformity with international law (subparagraph 1(c) of Article VII); and

• affording the appropriate form of legal assistance to other States Parties, to facilitate the implementation of the obligations under paragraph 1 of Article VII (Article VII, paragraph 2).

9 Council 15708/03 on 12 December 2003

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Article 4 of the Biological and Toxin Weapons Convention (BWC) requires that each State Party shall take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition, or retention of the agents, toxins, weapons, equipment and means of delivery specified in the Article 1 of the BWC10, within the territory of such State, under its jurisdiction or under its control anywhere.

The Nuclear Terrorism Convention11 broadly criminalises illicit possession and use of radioactive material with the intention to harm.

More specifically Article 2 of this Convention stipulates that:

“Any person commits an offense within the meaning of this Convention if that person unlawfully and intentionally:

a) Possesses radioactive material or makes or possesses a device:

i. With the intent to cause death or serious bodily injury; or

ii. With the intent to cause substantial damage to property or the environment;

b) Uses in any way radioactive material or a device, or uses or damages a nuclear facility in a manner which releases or risks the release of radioactive material:

i. With the intent to cause death or serious bodily injury; or

ii. With the intent to cause substantial damage to property or the environment;

iii. With the intent to compel a natural or legal person, an international organization or a State to do or refrain from doing an act.”

Following Article 1 of the Council Framework Decision on combating terrorism12 Member States shall ensure that "manufacture, possession, acquisition, transport, supply or use of (…) nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons" shall be deemed as terrorist offences under national law when this is done with the aim of:

• seriously intimidating a population, or

• unduly compelling a Government or international organisation to perform or abstain from performing any act, or

• seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

Article 5 of the Framework Decision requires furthermore that Each Member State shall take the necessary measures to ensure that these terrorist offences are punishable by effective, proportionate and dissuasive criminal penalties, which may entail extradition.

10 Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:

(1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;

(2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict. 11 Convention for Suppression of Acts of Nuclear Terrorism, 2005

12 2002/475/JHA of 13 June 2002

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Within the framework of the New Lines for Action the Council agreed to re-launch the discussion on punitive action against proliferation. Member States were encouraged to survey current practices and legislation relating to the prevention and punishment of acts of proliferation in order to identify any shortcomings. They were encouraged to increase the effectiveness, consistency, visibility and deterrent nature of their national enforcement measures in the context of combating the proliferation of weapons of mass destruction and their delivery systems. The Council called on the competent institutions and working parties to carry out a comparative study on this issue. Furthermore, it was suggested that the Council agree to make illegal exports, brokerage and smuggling of weapons and materials of mass destruction subject to criminal sanctions.

I.2.3. Objectives and Scope

The objective of this study is to analyse national criminal law provisions concerning CBRN terrorism and WMD proliferation by non-state actors, in order to assess whether any further work at EU level is necessary.

Objective 1: The study must identify, analyse and present all relevant legal instruments concerning CBRN terrorism and WMD proliferation by non-state actors.

This analysis needs to be done at:

• International level (e.g. Treaties, Conventions, Security Council Resolutions);

• EU level (e.g. Council Framework Decision on combating terrorism, EU WMD Strategy and New Lines for Action).

Possibly relevant questions are:

• What is the ratification status of international instruments? Are ratified instruments incorporated into national law (either directly or by way of implementing legislation)?

• What is the transposition and implementation status of EU instruments, taking into account the different nature of such instruments (legal, political, second pillar, third pillar)?

• Do the legal provisions address the actions of States or the matter of individual responsibility?

Objective 2: The study must identify, analyse and present the existing relevant criminal law provisions in the EU Member States and in other specific third countries (see 4. Methodology).


• What are the concrete actions related to CBRN and WMD material to be considered as offences in criminal provisions? Examples for the type of (legal or illegal/illicit) actions could be:

o Research o Development o Production and manufacture o Stockpiling o Possession o Acquisition o Transport and transfer (including cross-border) o Financing o Supply o Export o Brokerage o Use

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• Are the provisions applicable to own nationals/foreign nationals who commit offences outside the national territory?

• Are offenders prosecuted? What is the jurisdictional basis (territoriality, nationality, etc.)?

• Do the provisions allow for extradition of alleged offenders?

• If extradition is not granted, is jurisdiction over offenders established?

• Are there specific provisions for mutual legal assistance to foreign countries?

Objective 3: The study should identify, analyse and present possibly existing gaps in criminal law as a result of the analysis above and provide recommendations on how to address any legal deficits.


• Are there deficits in the legislative incorporation or implementation of existing anti-terrorism or non-proliferation instruments?

• Are new instruments in terms of substantive criminal law needed? What could be done to fill the gaps?

• What could/should be done at EU level and/or at international level?

As regards the level of analysis provided the study should be as comprehensive as possible. The questions and elements presented are non-exhaustive. The potential contractor should consider in its bid and in the inception report any other areas in addition to those covered in these terms of reference to make sure that the study covers all possible angles and relevant issues.

The use of the results will be decided by the Commission after careful evaluation. The outcomes may be used in different ways: policy making, proposals for new legislation, proposals to amend to existing legislation, evaluation of policies and of allocation of financial resources, etc.

I.2.4. Methodology, Analysis and Conclusions


• The study must treat the subject in the most comprehensive manner possible, through analysis of regulations, standards or other instruments of regulation and literature, interviews with practitioners, collection of empirical data, etc.

• The study should draw on evidence gathered from relevant actors, in order to achieve a complete list of relevant provisions and in order to evaluate their practical implementation.

• The bidder should consider visits to practitioners in order to be able to assess the practical relevance of the situation across the EU. The costs of such visits should be included in the overall costs of the study.


• However, the most desirable coverage of the study is for all Member States of the European Union. Proposals which cover more than the minimum 15 Member States will receive higher marks in the evaluation procedure. Covering the following countries would represent higher scores as well: Croatia, the Former Yugoslav Republic of Macedonia, Iceland, Turkey, Norway, Switzerland, Albania, Bosnia and Herzegovina, Montenegro, Serbia, Belarus,

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Moldova, and Ukraine. References to other relevant countries outside the EU could be made, if possible.


• The study should make use of existing knowledge and collected data, e.g.:

o The United Nations Office on Drugs and Crime (UNODC) holds a database on international terrorism legislation13 covering the text of penal codes and criminal procedure codes of more than 100 countries.

o The Interpol "Biocriminalization Project"14 collected and consolidated information from existing databases on the legislation to prevent and prohibit the misuse of biological agents and toxins.

o The Council Framework Decision on Combating Terrorism criminalises CBRN terrorism, and the evaluation reports present the measures taken by the EU Member States to comply with this instrument.

• The study will cover a very broad area of concern. The proposed methodology will have to:

o ensure that the results of the study are presented in a structured and understandable manner;

o elaborate on how to tackle the complexity of the study in practice and how to achieve the desired results.

I.2.5. Proposal



I.2.6. Duration




An initial report within two weeks of the date of signature of the contract, to detail the proposed approach including: envisaged information collection activities, type of field-work and case studies, geographical scope of information gathering, key informants and stakeholders, analytical tools, and

13 https://www.unodc.org/tldb/

14 http://www.interpol.int/Public/BioTerrorism/bioC/

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other methodological considerations. The initial report must include a clear work programme with estimated timelines.








A draft final report should be prepared within eight months of the date of signature of the contract. The contractor shall comply with any request by the Commission to attend a final assessment meeting at the European Commission within one week of the submission of the draft final report.









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Inception meeting


Interim meeting


Final meeting





Place of work


Missions


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Workshops, Seminars

The contractor may organise workshops and networking activities in order to reinforce the exchange of information with external experts or stakeholders. The contractor will invite the Commission to such activities and will report specifically on the results. The contractor will bear the costs of organisational efforts to set up such events including speakers' fees, costs of the conference room, lunch and translation costs. The contractor shall be responsible for the agenda drafting and planning, selection and invitation of participants and speakers.

Confidentiality


I.2.11. Maximum Budget




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I.3. Lot 3: Study on the Feasibility of the possibility of using the delivery documentation mechanism to better understand and monitor the supply chain

I.3.1. Scope and Objectives

Action C.9 of the action plan calls on the Commission (supported by the member States) to perform a feasibility assessment on the possibility of using the delivery documentation mechanism to better understand and monitor the supply chain (possibly link it to tracking and tracing). This recommendation reflects the identified need to ensure that even limited quantities of high-risk chemicals do not make their way in the hands of potential terrorists.

The proposed study must be conducted in the light of the Commission's policy in the fight against terrorism and more specifically that of preventing the use of high-risk CBRN materials by criminals and terrorists to harm and kill human beings and to cause damage to property and economic disruption.

General objective

Certain high-risk chemicals are widely used by industry for legitimate purposes. Without hindering the positive uses of such chemicals, the EU and the chemical industry should aim at limiting access to high-risk chemicals through efficient customer qualification schemes. It should be ensured that even limited quantities of such agents do not make their way into the hands of potential terrorists.

The requested study should help to gain insight into whether and how the delivery documentation of these high risk chemicals can be used in order to better understand and monitor the supply chain and how it possibly can be linked to tracking and tracing. The assessment should be evaluated from the security perspective, i.e. a secure supply chain from production to distribution.

Specific objectives

(a) Provide an overview of all existing (voluntary and legally required) delivery documentation systems for chemical substances in Member States. The security amendments of the Customs Code (regulation 648/2005) and the implementing provisions 1875/2006 should be included in this overview.

(b) Give a recommendation how existing documentation systems can be used for security purposes.

(c) Provide an analysis of possible gaps on the basis of this overview.

(d) Provide, if appropriate, suggestions for how to overcome these gaps. These suggestions should include the following:

• An assessment of what chemicals are included anyway in the delivery documentation of the supply chain for tax uses.

• An assessment of what kind of supply chains need to monitored, including what kind of tracking and tracing systems can be used. Questions that need to be answered should in any case include: do we need to monitor only regular supply chains or also the irregular, do we need to monitor EU supply chains or global supply chains, what interaction exists with various aspects of EU or Member States legislation and what operators or distributors are dominant in the chain and are they interested in cooperating with the public authorities?

• An assessment on the feasibility of a possible method that can be used to monitor the supply

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chain. Questions that need to be answered should in any case include whether operators find the development of a method to identify small amounts of high risk chemicals missing important, do they have their own systems in place and do these systems allow for a competitive edge, what are the requirements for the public authorities to participate in a possible scheme? This assessment should also include a cost estimate of the possible method identified. If possible the study must identify what size of business or how many transactions are required to make an electronic tracking and tracing system viable.

• An assessment whether chemical companies and traders already have customer qualification schemes in place in order to identify the customer.

• An assessment of how easily someone can start up a company and acquire high risk chemicals.

• If appropriate, a recommendation on a strengthened and mandatory delivery documentation system for special substances.

I.3.2. Methodology


• The analysis must be carried out based on a literature study of existing EU and international practises and regulation and related relevant implementation and assessment reports and information from relevant Member States authorities and from stakeholders operating in the sector. The study has also to take into account existing studies conducted or financed by the Commission. Co-operation with the private sector and with the Member State authorities is vital in this matter and should in all cases be previously consulted with the European Commission.

• The study must cover at least 15 Member States. There should be a mix that covers different modes of border crossing (sea, air, land) and countries that are at the external border of the EU, for instance Germany, Finland, Poland and the Baltic States . The contractor must indicate which Member States it intends to cover.

• However, the most desirable coverage of the study is for all Member States of the European Union. Proposals which cover more than the minimum 15 Member States will receive higher marks in the evaluation procedure.


• The proposed methodology will have to:

- ensure that the results of the study are presented in a structured and understandable manner;

- elaborate on how to tackle the complexity of the study in practice and how to achieve the desired results.

• The methodology can also include stakeholder workshops as relevant (e.g. to validate the findings and help disseminate best practices). The costs of such events should be included in the overall costs of the study.

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I.3.3. Proposal



I.3.4. Duration





An interim report 4 months after the start of the contract describing the work done and the results achieved to date. The report should provide preliminary conclusions related to the scope of the study and should include the structure for the final report, and an updated work-plan (based on the experience of the first four months) ensuring the submission of the final report within the contractual deadline.







A draft final report should be prepared within 10 months of the date of signature of the contract. The contractor shall comply with any request by the Commission to attend a final assessment meeting at the European Commission within one week of the submission of the draft final report.

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The draft final report and final report shall be in English and shall be in 4 bound paper copies including annexes, in Word format as well as in PDF format suitable for publication by the Commission’s services on the Commission website.









Inception meeting


Interim meeting

An interim meeting during which the contractor will present the interim findings will be held in the course of the 4th month after signature of the contract by the last contracting party. It will be organised by the Commission’s services at the Commission’s premises in Brussels. A draft of the interim study report shall be made available to the Commission’s services 2 weeks in advance of the meeting. The contractor will have to finalise the interim study report on the basis of the outcome of the interim meeting. The interim study report, together with the minutes of the meeting, shall be made available to the Commission’s services within 3 weeks after the meeting.

Final meeting

A final meeting during which the contractor will present the final findings and proposed conclusions will be held within 10 months after signature of the contract by the last contracting party. It will be organised by the Commission’s services at the Commission’s premises in Brussels. A draft of the final study report shall be made available to the Commission’s services 3 weeks in advance of the meeting. The final report will describe the work accomplished and the results

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obtained when carrying out the contract. The final report must contain a relevant executive summary. The final report will include recommendations and specifications as requested under the objectives heading. The contractor will have to finalise the final study report on the basis of the outcome of the final meeting. The final study report, together with the minutes of the meeting, shall be made available to the Commission’s services within 3 weeks after the meeting.

In addition to these meetings, the contractor will be requested to participate and present the progress of the study at the meetings of the CBRN Advisory Group and/or its chemical sub-group. The contractor shall count with about two such meetings.



Place of work


Missions


Workshops

The contractor may organise networking activities such as workshops in order to reinforce the exchange of information with external experts or stakeholders. The contractor will invite the Commission to such activities and will report specifically on the results. The contractor will bear the costs of organisational efforts to set up such workshop(s) including speakers' fees, costs of the conference room, lunch and translation costs.

Confidentiality

The Contractor and its staff shall sign a declaration of confidentiality.



The budget is indicated in line with the principle of sound financial management, and the principles of economy and value for money shall prevail. While setting their travel budgets, tenderers are invited to take into account the requirements and the geographical coverage needed.

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I.4. Lot 4: Study on the identification of good practices with regard to dialogue between facility security managers and law enforcement, including the topic of providing security advice

I.4.1. Introduction

Action C.1 of the EU CBRN Action Plan calls on Member States that they should encourage relevant authorities to engage in dialogue with relevant site security managers and to advise operators on the necessary levels of security. Member States should encourage the establishment of trusted relationships between security managers and law enforcement counterparts.

Chemical facility safety is already regulated at EU level by way of the Seveso II directive. A thorough assessment of the security of chemical plants in all EU Member States has not been conducted. It is however clear that there are no comprehensive rules dealing with the security of chemical plants which would have an application to all EU Member States and to all facilities.

Industry level self-regulation exists to a certain degree, but does not specifically address security issues (the Responsible Care programme in the EU does not contain a security part).

At Member State level, certain Member States have implemented security measures with regard to their chemical plants, primarily in relation to chemical plants designated as critical infrastructures. Some of these measures foresee the establishment of a platform for dialogue between law enforcement authorities and site security managers, the creation of rapid alert systems, the requirement for risk management plans including specific protection measures. Good practices should be identified in this regard and shared among all EU Member States.

There is a need for a dialogue among chemical facility operators and relevant security authorities in order to facilitate the exchange of information needed for a robust risk assessment process. The chemical industry may face a number of challenges in preparing their facilities against a terrorist attack. For example, the cost of security improvements can be burdensome. Moreover, it may be difficult to determine the appropriate level of security for different facilities without guidance on what level of security is adequate.



I.4.3. General objective

The general objective of the study is to give an overview of existing practices in the dialogue between chemical facility security managers and law enforcement. This should include also the topic of providing security advice in the area of high risk chemicals to relevant authorities within the Member States and should identify good practices among the cases reviewed (or propose a combination of different practises as a good practice).

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The Commission will distribute the results of the study among the members of the CBRN Advisory group and consider possible measures to be undertaken at the EU level. The study can therefore contain concrete proposals or recommendations for policy options.

I.4.4. Specific objectives

In order to be able to implement the overall goal of the study, several specific goals/objectives have to be researched first:

(a) Provide an overview of existing practices in the area of dialogue on monitoring and control over high risk chemicals between chemical facility security managers and law enforcement in the EU Member States. The contractor needs to establish good co-operation with the private sector in this matter.

Furthermore, the contractor will be expected to evaluate relevant policy approaches that countries outside the EU, especially the United States, have adopted. A clear description of any elements within those approaches that can be transferable to an EU scenario would be welcome, keeping in mind the fundamental differences in legal systems and the specific nature of the European Union.

Among others, the following questions should be addressed by this part of the study:

- What are the standards and approaches in Member States with regard to the monitoring and control over high risk chemicals?

- What arrangements do the Members States have for the exchange of information between law enforcement and security managers, needed to make risk assessments? What are the issues discussed?

- What actions do Member States take to improve the dialogue between law enforcement and security managers?

- What are the good practices in terms of providing security advice by law enforcement authorities to security managers?

- What is the role of security advice in enhancing the monitoring and control of high risk chemicals, for instance in developing security plans in the different Member States? Do security plans give guidelines for the appropriate level of security?

(b) Provide an overview of the criteria used to identify good practices among the reviewed cases in the Member States. Clear guidelines including criteria to help identify what might be an adequate level of information exchange can help actors to determine the appropriate model for different facilities. If possible, the contractor should also evaluate relevant policy approaches of countries outside the EU, especially the United States.

(c) Based on the analysis of national practices in the area of dialogue between the security managers and law enforcement and defining the criteria for identifying good practices, make an overview of best practices and derive lessons learnt for both the Member States and the European level.

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I.4.5. Methodology


• The analysis must be carried out based on a literature review, as well as information from relevant Member States authorities and from stakeholders operating in each sector.







I.4.6. Proposal



I.4.7. Duration





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A draft final report should be prepared within nine months of the date of signature of the contract. The contractor shall comply with any request by the Commission to attend a final assessment meeting at the European Commission within one week of the submission of the draft final report.










Inception meeting

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Interim meeting


Final meeting



I.4.11. Work conditions

Place of work


Missions


Workshops

The contractor may organise networking activities such as workshops in order to reinforce the exchange of information with external experts or stakeholders. The contractor will invite the Commission to such activities and will report specifically on the results.

In any case, the Contractor will be required to organise a seminar or participate at the CBRN Advisory group meeting (if the timing of the CBRN Advisory group meeting coincides with the contract), within 10 months after the signature of the contract by the last contracting party, with

34

representatives of the relevant authorities and sectors to discuss the final report after its approval by the Commission. The contractor will bear the costs of organisational efforts to set up the seminar including speakers' fees, costs of the conference room, lunch and translation costs. The contractor shall be responsible for the agenda drafting and planning, selection and invitation of participants (minimum 30) and speakers.

Confidentiality

The final results of the study may be classified. The tenderer should therefore be able to demonstrate the capacity to handle classified documents (personnel working on the classified parts of the study) as well as facilities to handle such sensitive materials. The Contractor and its staff shall in any case sign a declaration of confidentiality.


The maximum amount available for this study is 200.000 Euro.



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I.5. Lot 5: Study on the implementation of the IAEA Guidance on the Import and Export of Radioactive Sources by the EU Member States and on the need and feasibility to draw up common EU criteria for authorising imports and exports from and to third countries

I.5.1. Introduction

Action RN.16 of the EU CBRN Action Plan calls on the Commission (supported by the Member States) to "assess to what extent the Code of Conduct and the IAEA Guidance cover the export and import of all high-risk radioactive sources and how these documents are implemented in the EU Member States." In addition, action RN.17 tasks the Commission (again with the support of the Member States) to "examine the need and feasibility of drawing up common EU criteria for authorising imports and exports from and to third countries, following an assessment of how the EU Member States implement the IAEA Guidance on the Import and Export of Radioactive Sources."

Moreover, action RN.11 encourages the Member States and the Commission to “assess the feasibility and potential costs/benefits of creating an electronic system for the control of cross-border transfers of high-risk radioactive sources.” Such an electronic system would also relate to the import and export of radioactive sources from and to third countries.

Annually, millions of commercial radioactive sources are transported worldwide. At the moment, some exports of radioactive sources from the Community fall within the scope of the Dual-use Regulation (428/2009), notably nuclear materials, depleted uranium, thorium, tritium, neptunium-237, radium-226, plutonium with a high content of the 238 isotope, and alpha emitters with a high specific activity (e.g. polonium-210). The same regulation currently also requires a transfer permit to be obtained for intra-Community transfers of highly enriched uranium, (nuclear) plutonium, tritium, and neptunium-237. Otherwise, no special export control regime applies to the whole variety of commercial radioactive sources.

In terms of the Community legislative framework, the HASS Directive15 addresses the import to the Community of high-activity sealed sources via the prior authorisation requirement for taking possession of them, but does not deal with the export from the Community of such sources, nor does it address import or export of low activity or unsealed sources, which can represent a security risk if not under proper regulatory control. Council Regulation 1493/93/Euratom on the shipments of radioactive substances between Member States provides for a Community system for the intra-community transfers of all sealed and unsealed sources, but does not apply to the export out of and import into the Community.

The Code of Conduct on the Safety and Security of Radioactive Sources (“Code”) goes into considerable detail concerning import/export controls. The IAEA Guidance on the Import and Export of Radioactive Sources (“Guidance”) provides further detail in this regard, which can also play an important role in the prevention of criminal or unauthorised acts involving radioactive sources if properly applied and implemented. These documents are not binding, however. In the absence of an EU-wide tracking system of commercial radioactive sources, this situation may present a security risk.

I.5.2. Scope and objectives

Scope 15 Council Directive 2003/122/EURATOM on the control of high-activity sealed radioactive sources and orphan

sources.

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The requested study should help gain a better understanding of the current situation in the application and implementation of the Code and the Guidance by the EU Member States in relation to third countries and on the suitability and feasibility of drawing up common European criteria on import and export of radioactive sources (from and to third countries). It must be conducted in the light of the Commission's policy in the fight against terrorism and more specifically that of preventing the use of high-risk CBRN materials by criminals and terrorists.

The study should include an assessment of the application of Regulation 1493/93/Euratom in all the Member States and of the implementation of the applicable Articles of the HASS Directive.

The study should focus on radioactive sources covered by the Code of Conduct on the Safety and Security of Radioactive Sources and the IAEA Guidance on the Import and Export of Radioactive Sources (i.e. so-called Category 1 and 2 sources as described in Annex 1 of the IAEA Code of Conduct on the Safety and Security of Radioactive Sources). It should also include into the assessment additional relevant high-risk sources that are not covered by the IAEA Guidance on the Import and Export and by the HASS Directive. These are especially Category 3 sources from the Annex of the IAEA Code of Conduct and high activity sources used in industry, medicine and research, which can be easily diverted and which can cause damage when dispersed (they can include sources below the HASS Directive threshold but above the exemption limits of Directive 96/29/Euratom - Basic Safety Standards). The contractor must take into account that the definition and interpretation of sealed sources can vary in the Member States, and reflect this in the study.

With regard to the export relevant part of the study, full account must be taken of the EU export control regime as established through Regulation 428/2009.

General objective

The overall objective of the study is to provide an assessment of how the EU Member States implement the IAEA Guidance on the Import and Export of Radioactive Sources, taking into account Regulation 1493/93/Euratom and the HASS Directive. In addition to this, the study should also give an overview of practices related to the import and export of radioactive sources not covered by the IAEA Guidance (as described above).

Both groups of radioactive sources should be also evaluated from the security perspective, notably taking the risk of diversion and misappropriation for criminal purposes into consideration.

At the same time, good practices on import and export and on intra-community transfer of sources, indentified in the course of the study, should be included. On the basis of the outcome of this assessment, the study should in its second part examine the need and feasibility of amending existing Community legislation in order to take into account import and export of sources and drawing up a common control and surveillance regime, including binding EU criteria for authorising imports and exports from and to third countries.

The study should provide the European Commission and the relevant Member State authorities, to which it will be distributed, with a better understanding of the current situation and of possible gaps from the security perspective. Its second part should give the European Commission and the Member States a good basis on which to consider possible measures at the EU level. By this and by including examples of good practices in the Member States, the study should provide the basis for improving security in this area. The study should therefore contain concrete proposals or recommendations for policy options.

Specific objectives

A) Provide a review of existing export/import procedures, recommended in the IAEA Guidance on the Import and Export of Radioactive Sources for category 1 and 2 radioactive

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sources, applied by the EU Member States, including enforcement measures. Both legislative and voluntary measures should be examined. In addition to category 1 and 2 sources (covered by the IAEA codes), the study should also apply to the provisions of the IAEA Guidance on the Import and Export to other sources as defined in the scope of the study and assess the existing practice in the EU Member States from this perspective.

Furthermore, the contractor will be expected to evaluate relevant policy approaches that countries outside the EU, especially the United States, have adopted to tackle the problem of the export/import of radioactive sources. A clear description of any elements within those approaches that can be transferable to an EU scenario would be welcome, keeping in mind the fundamental differences in legal systems and the specific nature of the European Union.

Among others, the following questions should be answered in the study:

• Has each State nominated a point of contact for the purpose of facilitating the export and/or import of category 1 and 2 of radioactive sources in accordance with the Code, the Guidance, (and the HASS Directive and Regulation 1493/93/Euratom)? Are the tasks of these points of contact well defined and are these points of contact fully aware of their role and responsibilities? Is there a clear division of work if there are multiple points of contact in one Member State? Are changes in the point of contact promptly notified to the IAEA and other partners?

• Has each Member State established export authorisation procedures as recommended in the IAEA Guidance? Do these procedures include appropriate enforcement measures?

• Has each Member State established import authorisation for the import of radioactive sources and do these procedures include enforcement measures? For instance, does each State have procedures to verify that the recipient is authorised to receive and posses the source in accordance with the laws and regulations of the importing State?

• What criteria for the authorisation of imports and exports do the Member States currently apply?

• Does each Member State possess the appropriate technical and administrative capabilities, resources and regulatory structure needed for the management of the radioactive sources in a manner consistent with the Guidance in the Code?

• Do Member States consider paragraph 29 of the Code with respect to the transport of radioactive sources through the territory of any state other than the importing or exporting State?

• Is the import and export of all radioactive sources, which are defined in the scope of this study, covered in the Code of Conduct and the IAEA Guidance, and implemented in the EU Member States?

• The transport regulations use the concept of "Special Form Material" in relation to sealed sources, whilst the Euratom Basic Safety Standards and the IAEA Code of Conduct use other definitions. The contractor should examine what practical consequences these differing definitions may produce in relation to security.

• Are there any significant implementation and security gaps in the current regime? What are these?

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B) Provide a review of implementation of the HASS Directive, in the area of import/export, and of the application of the Regulation 1493/93/Euratom.

Among others, the following questions should be answered in the study:

• Has each State nominated a point of contact for the purpose of facilitating the export and/or import in accordance with the HASS Directive and Regulation 1493/93/Euratom (and the IAEA Code and Guidance)? Are the tasks of these points of contact well defined and are these points of contact fully aware of their role and responsibilities? Is there a clear division of work if there are multiple points of contact in one Member State? Are changes in the point of contact promptly notified?

• Does each Member States require the holder to obtain prior authorisation for any practice involving a source, including taking possession of a source in compliance with the HASS Directive?

• Do the holders of sealed sources, who intend to carry out a shipment of such sources, apply Regulation 1493/93/Euratom and obtain a prior written declaration by the consignee of the radioactive substances to the effect that the consignee has notified the receipt of the source to the competent authorities and complies with all relevant national requirements, in the Member State of destination?

• Do the holders of sealed sources and other relevant sources (=source intended for direct or indirect use of the ionising radiation it emits for medical, veterinary, industrial, commercial, research or agricultural applications), which have carried out a shipment of such sources, apply Article 6 of Regulation 1493/93/Euratom and provide the competent authorities within 21 days of the end of each calendar quarter with information on the deliveries?

• What are the most valuable elements of the current regime for intra community transfers of sources and would there be an added value to extend the Community systems established by Regulation 1493/93/Euratom or the HASS Directive to include import and export of radioactive sources?

"Sealed sources" for the purpose of implementing the HASS Regulation are defined in the Basic Safety Standards, which may leave some margin for differences in national interpretation.

• How are sealed sources defined in each Member State? The study should give an aggregate overview of commonalities and differences in the definition and interpretation and assess whether the differences are such that they may pose a security risk.

The contractor should also gather information on shipments of unsealed sources. Based upon the information gathered by the Member States' competent authorities in the framework of Council Regulation (EURATOM) No 1493/93, the contractor should also gather information, per Member State, on delivery of unsealed sources as follows:

• the number of deliveries per year,

• the isotopes concerned and their activities,

• the number of such deliveries which would be classified as High Consequence Dangerous Goods under the UN dangerous Goods regime.

C) Examine on the basis of the existing export/import procedures within the member states and the EU level, and the potential gaps that were identified, the need and the feasibility of drawing up

39

common EU criteria for authorising imports and exports from and to third countries. What should be included in such criteria?

D) Provide recommendations and guidance to support the possible development of drawing up common EU criteria for the import/export of category 1 and 2 radioactive sources. This should in any case cover possible mutual understanding of the existing gaps in the import and export authorisation procedures.

E) Provide recommendations on possible approaches to be used to strengthen the export regime of covered sources. Would controls on the export of sources in line with the Code of Conduct and the Guidance be more effective using the mechanism of the Dual-use Regulation (428/2009), national controls or an ad-hoc system? The advantages and disadvantages of each of these modalities should be assessed, addressing also the role of customs in the process.

What would be the feasibility and potential costs/benefits of creating an electronic system for the control of import and export of high-risk radioactive sources?

F) Assess the effects of compliance with the IAEA Code of Conduct on the existing intra-EU transfer administrative procedures for radioactive sources.

G) Validate the recommendations and guidance by proposing and applying evaluation criteria for assessing the efficiency of options proposed and a method to map the resources needed in the options identified.

I.5.3. Methodology


• The analysis must be carried out based on a) a profound review of existing EU and international regulation – binding as well as non-binding - and related relevant implementation and assessment reports and studies, and b) information from relevant Member States authorities, which must include EU contact points that appear on the list of National Contact Points of the IAEA Guidance (on the Import and Export of Radioactive Sources), EU Contact Points under Regulation 1493/93 and under the HASS Directive as well as from stakeholders operating in the sector. Co-operation with the private sector and with the Member State authorities is vital in this matter and should in all cases be previously consulted with the European Commission.




• The methodology should also include one stakeholder workshop (in Brussels) as relevant. Stakeholders are (amongst others) international organisations, representatives from the industries and competent authorities, consignors, consignees and users of sources. The costs

40

of this event should be included in the overall costs of the study. The agenda and invitee list prepared by the Contractor will be subject to consultation and approval of the Commission.




I.5.4. Duration




An initial report within two weeks of the date of signature of the contract, to detail the proposed approach including: envisaged information collection activities, type of field-work and case studies, key informants and stakeholders, analytical tools, and other methodological considerations. The initial report must include a clear work programme with estimated timelines.

First interim report 5 months after the start of the contract describing the work done and the results achieved to date.

Second interim report 10 months after the start of the contract describing the work done and the results achieved to date. The second interim report should provide preliminary conclusions related to the scope of the study and should include the structure for the final report, and an updated work-plan (based on the experience of the first 10 months) ensuring the submission of the final report within the contractual deadline.








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The final report, elaborated on the basis of the draft final report and the comments received from the Commission shall be in English and shall be in 4 bound paper copies including annexes, as well as electronically in Word format as well as in PDF format.









Inception meeting

An inception meeting will be organised by the Commission’s services at the Commission’s premises in Brussels within three weeks after the signature of the contract by the last contracting party, to finalise the work-plan and the methodology for the work to be undertaken, and to discuss and clarify possible open questions and issues. A draft of the inception report shall be made available to the Commission’s services 1 week in advance of the meeting. The contractor will have to finalise the inception report on the basis of the outcome of the inception meeting. The inception report, together with the minutes of the meeting, shall be made available to the Commission’s services within 2 weeks after the meeting.

Interim meetings

Two interim meetings, during which the contractor will present the interim findings, will be held in the course of the 6th and 11th month after signature of the contract by the last contracting party. It will be organised by the Commission’s services at the Commission’s premises in Brussels. A draft of the interim study report shall be made available to the Commission’s services 2 weeks in advance of the meeting. The contractor will have to finalise the respective interim study report on the basis of the outcome of the interim meeting. The interim study report, together with the minutes of the meeting, shall be made available to the Commission’s services within 3 weeks after the meeting.

Final meeting

A final meeting during which the contractor will present the final findings and proposed conclusions will be held within 14 months after signature of the contract by the last contracting party. It will be organised by the Commission’s services at the Commission’s premises in Brussels. A draft of the final study report shall be made available to the Commission’s services 3 weeks in advance of the meeting. The final report will describe the work accomplished and the results

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obtained when carrying out the contract. The final report must contain a relevant executive summary. The final report will include recommendations and specifications as requested under the objectives heading. The contractor will have to finalise the final study report on the basis of the outcome of the final meeting. The final study report, together with the minutes of the meeting, shall be made available to the Commission’s services within 3 weeks after the meeting.

In addition to these meetings, the contractor will be requested to participate and present the progress of the study at the meetings of the CBRN Advisory Group and/or its radiological and nuclear sub-group or at other meetings in or organised by the EU institutions. The contractor shall count with about three such meetings.



Place of work


Missions

The contractor may need to carry out missions in order to obtain information necessary for the study. Steering meetings with the Commission as well as the other meetings mentioned above will in principle be held in Brussels. The cost of such missions must be integrated in the overall costs of the study.

Workshops

The contractor may organise networking activities such as workshops (in addition to the required end-of project stakeholder workshop) in order to reinforce the exchange of information with external experts or stakeholders. The contractor will invite the Commission to such activities and will report specifically on the results. The contractor will bear the costs of organisational efforts to set up such workshop(s) including speakers' fees, costs of the conference room, lunch and translation costs.

Confidentiality


Access to classified materials

The Contractor will be required to have access to classified materials in the course of the work, and possibly present some of the required reports in two versions: a public and a classified one. Therefore, the Contractor's personnel will be required to hold a valid national security clearance in line with applicable Commission regulations.

I.5.9. Proposal


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It is required that the Contractor disposes of appropriate expertise in security and safety of radioactive sources, trade, and law (international legal framework, European Union law and national law). The proposal should demonstrate this expertise among the members of the team assigned to the work on the study.

I.5.10. Maximum Budget




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I.6. Lot 6: Study on the current status of radioactive sources in the EU, on the origin and the consequences of the loss of control over radioactive sources and on successful strategies concerning the detection and recovery of orphan sources

I.6.1. Introduction

Action RN.8 of the EU CBRN Action Plan states that "the Commission together with the member states should launch studies on the causes and consequences of the loss of control over radioactive sources, on the current status of used and disused sources in the EU and on transport patterns for legal uses of radioactive sources."

Action RN.9 of the Action Plan states that "the Commission should facilitate the exchange of experience on successful strategies concerning the detection and recovery of orphan sources (article 9 of the HASS Directive)."

These actions are based on a problem identification and assessment performed by the radiological and nuclear sub-group of the CBRN Task Force, a group of experts from the EU Member State authorities, which convened several times in the course of 2008 under the chairmanship of the European Commission. The Task Force identified a clear need to improve the control over high-risk radioactive sources, including and especially those not covered by the current national, EU and international regimes.

While nuclear materials are under the strict control of the safeguard authorities, the control regime of radioactive sources available in the commercial, health-care and research sector may be insufficient. Reports from the IAEA Illicit Trafficking Database confirm occurrences of loss of control over radioactive sources and unauthorised possession of radioactive sources in the EU. Sealed sources, in particular, are attractive to malevolent individuals or groups both because of their intrinsic value and the value of the shielding and encapsulating metals used to protect the user against radiation. It is noteworthy that the lost material has not always been subsequently reported as recovered.

The existence of orphan sources (i.e. sources out of regulatory control) resulting from past activities requires that specific initiatives be undertaken. The HASS Directive16 foresees this possibility and calls on Member States (Article 9) to ensure that the "competent authorities are prepared, or have made provision, including assignment of responsibilities, to recover orphan sources and to deal with radiological emergencies due to orphan sources and have drawn up appropriate response plans and measures" and that "specialised technical advice and assistance is promptly made available to the persons, not normally involved in operations subject to radiation protection requirements, who suspect the presence of an orphan source."

The HASS Directive also states that member states shall encourage the establishment of systems aimed at detecting orphan sources in places where orphan sources may generally be encountered.

However, the level of preparedness called for in the HASS Directive might vary in the Member States. Also the target group of this preparedness might be relatively large, and therefore it needs to be clearly defined. Last but not least, approaches and plans need to be elaborated on what happens when an orphan source is found, including elements important for further criminal investigations.

16 Directive 2003/122/EURATOM of 22 December 2003 on the control of high-activity sealed radioactive

sources and orphan sources.

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A basis for an efficient security system is a good tracking system. The HASS Directive aims to harmonise controls in the Member States, obliging the Member States to set up registries and to keep track of each transfer of covered sources (whereby transfer means the shift of responsibility and not the physical transport of the sources).

Registries for high-activity sealed sources are already in place in the Member States. It should be considered whether these registries should be expanded to cover other types of sources which are not covered by the HASS Directive but which can pose a credible risk from the security perspective if diverted and misused. Based on the existing scope of registries (and possible expansion in the future), a tracking system could be established in the EU.


Scope


The present study shall address three areas:

• high activity sources which are in use,

• high activity sources which are disused,

• orphan sources regardless of their activity level.

Regarding sources in use and disused sources, the study should focus on the IAEA Category 1,2 and 3 radioactive sources as described in Annex 1 of the IAEA Code of Conduct on the Safety and Security of Radioactive Sources and should in any case include (and give due emphasis) on sources used in the industry, medicine and research sector. The study should also address radioactive sources, which are not covered by the HASS Directive but which exceed the exemption limits set by Directive 96/29/Euratom (Basic Safety Standards).

The study should analyse sources that are in use. It should also include disused radioactive sources as defined in the HASS Directive (""disused source" means a source which is no longer used or intended to be used for the practice for which authorisation was granted").

As regards orphan sources, the study should focus on orphan sources as defined by the HASS Directive: "orphan source" means a sealed source, the activity level of which, at the time of its discovery, is above the exemption level referred to in Article 3(2)(a) of Directive 96/29/Euratom, and which is not under regulatory control, either because it has never been under regulatory control or because it has been abandoned, lost, misplaced, stolen or transferred, without proper notification of the competent authority, to a new holder or without informing the recipient. Known orphan sources are, generally, radioactive sources produced legitimately under governmental regulation and put into service for radiography, generating electricity in radioisotope thermoelectric generators, medical radiotherapy or irradiation.

General objectives

The overall objective of the study is to give an overview of the situation and trends in the EU Member States in each of the three areas described above. It should point to weak spots and possible gaps from the perspective of security, provide an analysis of these, suggest solutions

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(focusing on potential contributions of the EU level), and identify best practices in managing sources in use, disused sources, and in recovering orphan sources. This relates to the overarching goal of the Commission to enhance the control over high risk CBRN material. The analysis of orphan sources should seek to analyse to what extent orphan sources discovered within the EU originate outside the EU. To the extent possible, the study should also include information on the approaches applied in the United States of America and Canada.

The study shall provide the European Commission and the relevant Member State authorities, to which it will be distributed, with a better understanding of the current situation and possible gaps from the security perspective. By doing this and by including examples of good practices in the Member States, the study shall provide a good basis for improving the security of high-risk sources within the EU.

The results of the study will be shared with the relevant authorities of all EU Member States and should:

• provide them with a better understanding of the current situation, including potential gaps;

• inform them of best practices in the areas of managing the consequences of the loss of control over radioactive sources and of the detection and recovery of orphan sources;

• ultimately, it should contribute to the continuous improvement of the capacities to prevent the loss of control over radioactive sources and to detect and recover orphan sources.

Specific objectives

A) Provide an assessment of the current status of used and disused sources in all the EU member states, with a special focus on long term management aspects, namely storage and disposal of as radioactive waste. This is important because the sustainable management of disused sealed sources remains a challenge. Most countries now have arrangements in place whereby ‘take-back’ provisions must be incorporated into the supply contracts. Nevertheless, the disused sealed sources subject to disposal need special attention since in many cases they cannot be accepted in the near surface disposal facilities. The study should, accordingly, also provide an overview of existing recovery programmes for high risk disused sources in all EU member states.

Based upon information gathered by the Member States in managing high-activity sealed sources (HASS, Directive 20037122/Euratom), the contractor should make an inventory of the number of high-activity sealed sources per sector (medicine, industry, research, etc) per Member State, broken down by:

• total number of HASS;

• total number of holders of HASS;

• the radionuclides covered;

• the fraction of HASS covered by a Special Form Certificate;

• the fraction of HASS in fixed use;

• the fraction of HASS in mobile use;

• the fraction of HASS which are disused (according to the definition of the HASS Directive).

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Based on a comparison of this inventory with the IAEA Category 1-3 sources, do the registries contain comprehensive information also on these sources? Which sources are not well covered in the registries?

In view of facilitating possible future outreach activities, the contractor should attempt to identify International, European or national associations representing users of radioactive sources in the European Union such as trade associations, medical bodies etc. Preferably, these bodies should include security in their mandates.

Based on the assessment and presentation of the current status, the study should also identify weak points in the handling of used and disused sources in the EU, notably from the perspective of risk of loss or misappropriation for potential criminal purposes. Good practices of Member States on any of the elements related to this area should also be presented.

The following questions should also be answered in this section of the study:

• Has each Member State developed national policies and strategies for the management of sources, including when they are considered radioactive waste, and do they have an existing infrastructure to safely and securely manage their used/disused radioactive sources? What are a) the typical and b) good practices? Are there any weaknesses?

• Has each Member State established recovery programmes for their used/disused radioactive sources and are these radioactive sources made available to other states that need them?

B) Provide an overview of incidents in the EU where the control of radioactive sources was lost and assess the causes of such loss of control (using as input also results of the analysis in part A) and its consequences. The study should also review measures that are taken by the member states after the loss of the material (reporting, follow-up, etc.) and identify good practices. The IAEA Illicit Trafficking Database and Europol can be highly useful sources of information for at least a part of this section.

The following questions should be also answered in the study:

• Which radioactive sources are the most typical subject of loss of control?

• In how many cases there has been unauthorized access, loss and theft of radioactive sources in each member state?

• In how many cases there has there been harmful exposure to such sources and how often did it happen as a consequence of malicious intent to cause harm to individuals, society or the environment?

• Has each Member State established an adequate system of regulatory control of radioactive sources, applicable from the stage of initial production to their disposal and has each Member State a system for the restoration of such control if it has been lost? The study should also describe these systems.

• Do any Member States use or work on the development of telemetric/electronic monitoring of the supply chain of radioactive sources?

• Has each State established a national register or inventory of radioactive sources, that at least includes Category 1, 2 and 3 radioactive sources as described in Annex 1 of the IAEA Code of Conduct on the Safety and Security of Radioactive Sources? The study should also describe the systems in the Member States.

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C) i. Provide an overview of existing best practices in the EU Member States concerning the detection and recovery of orphan sources.

Measures implementing the applicable legislative as well as voluntary measures should be examined. Co-operation with the private sector should be also assessed. The overview should also take into account the successful strategies that are developed in countries outside the EU, especially by the United States (Nuclear Regulatory Commission). A clear description of any elements within those strategies that can be transferable to the EU strategies would be welcome, keeping in mind the fundamental differences in legal systems and the specific nature of the EU.

The following questions should be answered in the study:

• Which technical means are employed (e.g. fixed detection equipment, hand-held detection equipment, ad-hoc campaigns following a risk-assessment approach)?

• At which locations in MS are search or detection operations carried out in order to locate and identify orphan sources (e.g. scrap yards, scrap metal smelters, ports etc)?

• Are there any systematic schemes or plans to detect and recover orphan sources in place?

• Provide an overview of Member States' approaches to organising campaigns to recover orphan sources, left behind from past activities. How can such campaigns be facilitated and promoted?

• How can cost efficiency be achieved in order to support enhanced detection and recovery?

• How can the establishment of systems aimed at detecting orphan sources in places where they generally may be encountered (e.g. large metal scrap yards/recycling stations) be encouraged?

• How can specialised technical advice and assistance be made available to persons that may be confronted with the presence of orphan sources in their working environment?

• After an orphan source is detected, what are the best practices in the follow-up of such detection?

ii. Provide an overview and assessment of the weaknesses occurring in the practices of the Member States concerning the detection and recovery of orphan sources (including in the elements related to the questions above). The weaknesses and the assessment should be driven predominantly by the security perspective whereby the ultimate goal is to prevent the misuse of these sources for criminal and terrorist purposes.

iii. Based on the overview of good practices as well as weaknesses, propose solutions how the weaknesses in the system of detection and recovery of orphan sources can be addressed and the security improved. What can be done at the Member State and the EU levels (with the focus on how the EU can support the Member States)?

I.6.3. Methodology


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• The analysis must be carried out based on a profound review of existing EU and international regulation (especially IAEA) and related relevant implementation and assessment reports and studies.

• The methodology must include direct contact with the relevant Member State authorities and regulatory bodies, and with the private, health care and research sector, following a consultation and approval of the European Commission.




• The study shall contain descriptive and stock-taking elements but should also perform an analysis (identification of potential security risks and of their causes).

• The methodology should also include a stakeholder17 workshop to be held in Brussels towards the end of the project (e.g. to validate the findings and help disseminate best practices). The costs of this event should be included in the overall costs of the study. The agenda and invitee list prepared by the Contractor will be subject to consultation and approval of the Commission.




I.6.4. Duration



The contractor shall be required to submit the following reports: An initial report within two weeks of the date of signature of the contract, to detail the proposed approach including: envisaged information collection activities, type of field-work and case studies, key informants and stakeholders, analytical tools, and other methodological considerations. The initial report must include a clear work programme with estimated timelines. First interim report 5 months after the start of the contract describing the work done and the results achieved to date. 17 E.g. national authorities, industry, relevant organisations and associations.

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Second interim report 10 months after the start of the contract describing the work done and the results achieved to date. The second interim report should provide preliminary conclusions related to the scope of the study and should include the structure for the final report, and an updated work-plan (based on the experience of the first 10 months) ensuring the submission of the final report within the contractual deadline. The interim reports should contain at least the following information:






A draft final report should be prepared within 13 months of the date of signature of the contract. The contractor shall comply with any request by the Commission to attend a final assessment meeting at the European Commission within one week of the submission of the draft final report. The final report, elaborated on the basis of the draft final report and the comments received from the Commission shall be in English and shall be in 4 bound paper copies including annexes, in Word format as well as in PDF format. The final report shall include:








Inception meeting

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Interim meetings

Two interim meetings during which the contractor will present the interim findings will be held in the course of the 6th and 11th month after signature of the contract by the last contracting party. It will be organised by the Commission’s services at the Commission’s premises in Brussels. A draft of the interim study report shall be made available to the Commission’s services 2 weeks in advance of the meeting. The contractor will have to finalise the respective interim study report on the basis of the outcome of the interim meeting. The interim study report, together with the minutes of the meeting, shall be made available to the Commission’s services within 3 weeks after the meeting.

Final meeting





Place of work

The work shall be carried out at the contractor's premises.

Missions


Workshops

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Confidentiality



I.6.9. Proposal



It is required that the Contractor disposes of appropriate expertise in security and safety of radioactive and nuclear sources and law (international legal framework, European Union law and national law), and has access to expertise in the field of customs and border control and detection of radioactive sources. The proposal should demonstrate this expertise among the members of the team assigned to the work on the study.



The budget should be indicated in line with the principle of sound financial management, and the principles of economy and value for money shall prevail.


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I.7. Lot 7: Study on transport patterns of radioactive sources

I.7.1. Introduction

Action RN.8 of the EU CBRN Action Plan states that the "Commission together with the member states should launch studies on the causes and consequences of the loss of control over radioactive sources, on the current status of used and disused sources in the EU and on transport patterns for legal uses of radioactive sources."

The transport of radioactive sources across as well as within the Member States poses a number of security related risks. Various high-level requirements exist in this area and a broad framework of transport legislation applicable to safety and security already exists in the EU18. Nevertheless, not all radioactive sources and especially those identified as high-risk, and all modes of their transport may be covered by existing legal regimes. A high level of security also needs to be ensured for transport within the individual Member States and for the transport of all radioactive sources that pose a high risk from the perspective of security, especially of radioactive sources available in the commercial, health-care and research sector.


Scope


The study should build on studies and work conducted so far in the relevant fora19.

The study should focus on the Category 1, 2 and 3 radioactive sources as described in Annex 1 of the IAEA Code of Conduct on the Safety and Security of Radioactive Sources20 and sources categorised as high consequence in ADR. In addition to this, the study might need to include, based on the analysis performed under A) in section 2.3, additional radioactive sources used in the industry, medicine and research sector, which can be misused for terrorist purposes.

The study should also, if possible, provide an overview of the situation and trends (as set in the objectives below) on the transport of nuclear sources. However, the emphasis of the study should be on radioactive sources used in the industry, medicine and research sector.

18 European Agreement on the International Carriage of Dangerous Goods by Road (ADR), the Regulations

Concerning the International Carriage of Dangerous Goods by Rail (RID) and the European Agreement on the International Carriage of Dangerous Goods by Inland Waterway (ADN) which are brought into EU legislation through Framework Directive 2008/68; Technical Instructions for the Safe transport of Dangerous Goods by Air (TI-ICAO); International Maritime Dangerous Goods Code (IMDG-IMO). In 2005 new security rules were introduced into the UN Modal Regulations (ADR, RID, and, TI, IMDG. These rules cover safety and security of all dangerous goods with additional specific rules for High Consequence Dangerous Goods (HCDG).

19 For example the HCDG Study by Pira Consulting, TREN/07/ST/S07.76239, 2008 or Statistics on the Transport of Radioactive Materials and statistical Analyses, Final report, March 2003, 4.1020/D/01- 003.

20 See also Categorization of Radioactive Sources, IAEA Safety Guide No. RS-G-1.9

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General objective

The overall objective of the study is to provide an overview of the situation and trends in the transport patterns of radioactive sources and an analysis of whether the transport of all radioactive sources, and especially those identified as high-risk from the security perspective, are covered by existing legal regimes concerning transport. Depending on the outcome of the analysis above, the study should assess the need for new transport rules in relation to high-risk sources.

Specific objectives

A) Ensure that the study covers the scope of radioactive sources as set out in section 2.1.

Sources categorised as high consequence goods in ADR should be cross-checked and compared with the IAEA Category 1, 2 and 3 radioactive sources Are there any other radioactive sources, used in the industry, medicine and research sector, which are not included into the existing categorisations but which could be vulnerable for misuse for criminal purposes?

B) Provide an overview of the transport patterns of radioactive sources.

The study should describe and assess both the intra-state patterns and practices as well as transport between the EU Member States, and should cover all modes of transport. The patterns should be described from the perspective of number of intra-state transports and number of inter-state transports (and for the latter, these counts should be accompanied by listing states through which the transports passed) and also grouped by categories of use of the sources (industry, medicine, research, waste, etc.) and by modes of transportation. An inventory of main transport companies should be also included into this section.

C) Create an inventory of the existing security measures in both inter-state and intra-state transport of radioactive sources in the European Union.

• What security measures are applied for such transport by the EU Member States?

• How is the transport controlled and tracked?

• Do any Member States use or consider electronic, real-time tracking of the transport of radioactive sources?

D) Perform a gap analysis from the security perspective

Among other, the following questions should be addressed:

• Are there any gaps/risks from the security perspective in the existing practices of transport both across the intra-EU borders and the inland transport?

• What are the vulnerable points in the transport chain, where loss of control over the radioactive source transported could occur?

• Are all radioactive sources, which are in the scope of this study, covered by the current regulatory framework in the EU?

E) Provide suggestions on how these gaps could be closed

Are there any particular good practices in the transport of radioactive sources? Would it be practicable and feasible to introduce an electronic tracking system for these transports (both among

55

and within the EU Member States)? The study should provide an assessment, including a rough estimation of the costs of such system.

I.7.3. Methodology


• The analysis must be carried out based on a profound review of existing EU and international regulation (especially ADR and IAEA) and related relevant implementation and assessment reports and studies.

• The methodology must include direct contact with the relevant Member State authorities and regulatory bodies, and with the private, health care and research sector, following a consultation and approval of the European Commission.




• The study shall contain descriptive and stock-taking elements but should also perform an analysis (identification of potential security risks and of their causes).

• The methodology should also include a stakeholder21 workshop to be held in Brussels towards the end of the project (e.g. to validate the findings and help disseminate best practices). The costs of this event should be included in the overall costs of the study. The agenda and invitee list prepared by the Contractor will be subject to consultation and approval of the Commission.




I.7.4. Duration


21 National authorities, representatives of transport industry, relevant representatives of other associations and

organisations.

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An initial report within two weeks of the date of signature of the contract, to detail the proposed approach including: envisaged information collection activities, type of field-work and case studies, key informants and stakeholders, analytical tools, and other methodological considerations. The initial report must include a clear work programme with estimated timelines.

First interim report 5 months after the start of the contract describing the work done and the results achieved to date.

Second interim report 10 months after the start of the contract describing the work done and the results achieved to date. The second interim report should provide preliminary conclusions related to the scope of the study and should include the structure for the final report, and an updated work-plan (based on the experience of the first 10 months) ensuring the submission of the final report within the contractual deadline.








The final report, elaborated on the basis of the draft final report and the comments received from the Commission shall be in English and shall be in 4 bound paper copies including annexes, in Word format as well as in PDF format.






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Inception meeting


Interim meetings

Two interim meetings during which the contractor will present the interim findings will be held in the course of the 6th and 11th month after signature of the contract by the last contracting party. It will be organised by the Commission’s services at the Commission’s premises in Brussels. A draft of the interim study report shall be made available to the Commission’s services 2 weeks in advance of the meeting. The contractor will have to finalise the respective interim study report on the basis of the outcome of the interim meeting. The interim study report, together with the minutes of the meeting, shall be made available to the Commission’s services within 3 weeks after the meeting.

Final meeting





Place of work

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Missions


Workshops


Confidentiality



I.7.9. Proposal



It is required that the Contractor disposes of appropriate expertise in security and safety of radioactive and nuclear sources, transport, physical protection and law (international legal framework, European Union law and national law). The proposal should demonstrate this expertise among the members of the team assigned to the work on the study.





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I.8. Lot 8: Stocktaking study on good practices on reporting of suspicious transactions in relation to CBRN materials

I.8.1. Introduction

There are several legislative measures and mechanisms in place to control transactions and to notify thefts, losses and transactions that appear suspicious. These exist at international, European and national levels. The private and research sectors have also developed several voluntary initiatives, such as codes of conduct and guidelines. Nevertheless, there exists a concern that not all CBRN transactions of terrorist or criminal nature are addressed, given that the existing mechanisms either focus on specific types of materials or on specific cases of theft and losses only.

Among many other actions, the EU CBRN Action plan calls on the Member States and the Commission to:

(Action H.9)

• identify and exchange good practices on the reporting of suspicious transactions in relation to high risk CBRN materials used by private and public entities within the EU (e.g. industry, medical sector, research);

• establish modalities for reporting loss or suspicious transactions while enhancing awareness of relevant stakeholders about suspicious transactions and urge stakeholders to report such transactions to law-enforcement authorities.

and (action H.10)

• develop guidelines for the industry, the medical sector and the research community containing criteria identifying the forms of behaviour, in relation to transactions, which may give rise to suspicion. Member State authorities should provide guidance to stakeholders on what suspicious transactions are.

The reasoning behind proposing these actions was specific for each of the C, B, and RN strands. Certain high-risk chemicals are widely used by industry for legitimate purposes. Without hindering the positive uses of such chemicals, the EU and the chemical industry should aim at limiting access to high-risk chemicals through efficient customer qualification schemes. It should be ensured that even limited quantities of such agents do not make their way into the hands of potential terrorists. Under the Responsible Care programme, chemical companies are obliged to document all their deliveries. Consequently, certain companies often do not deliver to small private entities. There is a need to look into how smaller entities handle chemical precursors and to assess the likely methods by which small amounts of high-risk chemicals could be obtained.

As far as the B strand goes, at present, it is possible to buy the equipment for the production of biological agents and toxins at home, along with molecular biology kits and DNA constructs. Simple means to alert the relevant national authorities of suspicious transactions should exist inside within the supply chain. An approach towards the setting of criteria identifying suspicious behaviour could be developed for industry, retailers and the research community, however existing regulations should be taken into account in order to avoid overlaps. Established mechanisms to report suspicious transactions in relation to drugs or explosives precursors could also serve as an example.

For the RN strand, the number of orphan sources found every year on the territory of the EU indicates that losses and thefts of radioactive sources are not as uncommon as they should be. The

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efficient and quick recovery of lost/stolen sources may be dependent to a significant degree on the rapid response of relevant law enforcement authorities. Such authorities, both at local and national level, need to be informed about source-related incidents, in particular in relation to high-risk sources. Experience shows that law enforcement authorities are not always informed about relevant incidents. The HASS Directive already addresses the need to promptly notify the competent authority of any loss, theft or unauthorised use of a source. It should be ensured that apart from the competent authorities, relevant law enforcement authorities are also informed about such incidents in a timely manner. Notification schemes might also be needed for low-activity and unsealed sources which may cause a security risk. The processes put in place concerning the reporting of source-related incidents to law-enforcement authorities should target specific high-risk sources.

It is very clear that the implementation of both actions could be potentially very beneficial for the EU, as it is crucial that all stakeholders involved in the production and supply chain of CBRN materials are made aware of the possibility of their malicious use. It would be equally beneficial to establish modalities for reporting the losses or suspicious transactions to relevant law enforcement authorities. To this end, it is extremely important to map and assess existing practices within Member States as an initial step - this would enable the identification of the most appropriate practices for other Member States to learn from.

It is also extremely important to establish a clear definition of ‘suspicious transactions’, where national contexts are taken into account and while ensuring that stakeholders do not become ‘overly’ suspicious: normal transactions take place every day and stakeholders should be able to make some type of informed assessment as to whether the transaction is suspicious or not. Clear guidelines with criteria to help identifying forms of behaviour which may give rise to suspicion would help actors to recognise suspicious transactions and interactions. With Member State authorities providing ‘on-the-ground’ guidance, stakeholders would receive important additional contextual inputs.

In sum, in order for Member States and the Commission to take the two mentioned actions forward, a stock-taking study on good practices across the Member States is needed. The present study must therefore provide an overview of existing arrangements in EU Member States, and at the same time evaluate the practices or propose a combination of various practices across the EU that could be used as best practice model.


The study must be conducted in the light of the Commission's policy in the fight against terrorism and more specifically that of preventing the use high-risk CBRN materials by criminals and terrorists to harm and kill human beings and to cause damage to property and economic disruption.

General objective

The overall objective of the study is to give an overview of existing policies and practices in the area of the reporting of suspicious transactions of CBRN materials to relevant authorities within the member States and identify good practices among the cases reviewed (or propose a combination of different practises as a good practice).

The Commission will distribute the results of the study among the members of the CBRN Advisory group and consider possible measures to be undertaken at the EU level. The study can therefore contain concrete proposals or recommendations for policy options.

Specific objectives

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In order to be able to implement the overall goal of the study, several specific goals/objectives have to be researched first:

a) Provide an overview of existing regulations and practices in the area of reporting on suspicious transactions in the EU Member States. This review should take into account the whole supply chain of such materials. Both legislative and voluntary measures should be examined. Co-operation with the private sector is vital in this matter.

Furthermore, the contractor will be expected to evaluate relevant policy approaches that countries outside the EU, especially the United States, have adopted to tackle the problem of the reporting of suspicious transactions of CBRN materials. A clear description of any elements within those approaches that can be transferable to an EU scenario would be welcome, keeping in mind the fundamental differences in legal systems and the specific nature of the European Union.

Among others, the following questions should be addressed by this part of the study:

• Is there a specific Contact Point within relevant national authorities (e.g. law enforcement) established to whom actors within the production/delivery/use chain of CBRN materials could report suspicious transactions?

• What are the current reporting arrangements on suspicious CBRN transactions procedures (e.g. specific telephone number, awareness raising campaigns, etc)?

• How is the flow of information between the authorities and the relevant stakeholders (e.g. industry, research, the medical sector) organised (e.g. workshops, newsletters, training programmes)?

• In case no official reporting systems exists, how do stakeholders proceed when detecting a potentially suspicious transaction?

• How is the data on domestic and the export-import trade in CBRN materials collected?

• Is there a tracking and tracing system in place for the high-risk CBRN materials?

• Are Container Security Devices (electronic seals, smart boxes) used to ensure the integrity of transport of high risk CBRN materials?

b) Provide an overview of the criteria used to identify suspicious CBRN transactions and behaviour. Clear guidelines with criteria to help identifying forms of behaviour which may give rise to suspicion can help actors to recognise suspicious transactions and interactions. The main question to research in this context is, whether Member States provide ‘on-the-ground’ guidance to stakeholders on what suspicious behaviour and suspicious transactions are, on what criteria is the guidance based, and how the guidance was prepared (e.g. public-private). If possible, the contractor should also evaluate relevant policy approaches of countries outside the EU, especially the United States.

c) Based on the analysis of national approaches to reporting suspicious transactions and defining the criteria for suspicious transactions and behaviour, identify best practices and derive lessons learnt for both the Member States and the European level.

I.8.3. Methodology


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• The analysis must be primarily carried out based on literature review, as well as information from relevant Member States authorities and from stakeholders operating in each sector.

• The study must cover at least 15 Member States and the covered countries must altogether represent at least two thirds of the EU population. The contractor must indicate which Member States it intends to cover.






I.8.4. Proposal



I.8.5. Duration



The contractor shall be required to submit the following reports: An initial report within two weeks of the date of signature of the contract, to detail the proposed approach including: envisaged information collection activities, type of field-work and case studies, geographical scope of information gathering, key informants and stakeholders, analytical tools, and other methodological considerations. The initial report must include a clear work programme with estimated timelines. An interim report four months after the start of the contract describing the work done and the results achieved to date. The report should provide preliminary conclusions related to the scope of the study and should include the structure for the final report, and an updated work-plan (based on the experience of the first 4 months) ensuring the submission of the final report within the contractual deadline.

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The interim report should contain at least the following information:
















Inception meeting

An inception meeting will be organised by the Commission’s services at the Commission’s premises in Brussels within 2 weeks after the signature of the contract by the last contracting party, to finalise the work-plan and the methodology for the work to be undertaken, and to discuss and clarify possible open questions and issues. A draft of the inception report shall be made available to

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the Commission’s services 1 week in advance of the meeting. The contractor will have to finalise the inception report on the basis of the outcome of the inception meeting. The inception report, together with the minutes of the meeting, shall be made available to the Commission’s services within 2 weeks after the meeting.

Interim meeting


Final meeting




Place of work


Missions


Workshops

The contractor may organise networking activities such as workshops in order to reinforce the exchange of information with external experts or stakeholders. The contractor will invite the Commission to such activities and will report specifically on the results.

In any case, the Contractor will be required to organise a seminar or participate at the CBRN Advisory group meeting (if the timing of the CBRN Advisory group meeting coincides with the contract), within 10 months after the signature of the contract by the last contracting party, with representatives of the relevant authorities and sectors to discuss the final report after its approval by the Commission. The contractor will bear the costs of organisational efforts to set up the seminar including speakers' fees, costs of the conference room, lunch and translation costs. The

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contractor shall be responsible for the agenda drafting and planning, selection and invitation of participants (minimum 30) and speakers.

Confidentiality

The final results of the study may be classified. The tenderer should therefore be able to demonstrate the capacity to handle classified documents (personnel working on the classified parts of the study) as well as facilities to handle such sensitive materials. The Contractor and its staff shall in any case sign a declaration of confidentiality.





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I.9. Lot 9: study on the availability of high-risk chemicals to the general public and in particular on the specific risks associated with trade of chemicals over the internet

I.9.1. Introduction

The chemical market in the EU is large and diversified, with multiple end-users. At present a wide variety of chemicals is easily available to the general public. Especially the internet is an easy channel to buy such chemicals and great quantities of chemicals can be obtained by commercial or otherwise legitimate end-users.

The supply chain is in general insufficiently aware of its own vulnerabilities and the risks of terrorists and criminals attempting to obtain high-risk chemicals. In some cases, this is due to insufficient awareness of which transactions in substances are suspicious. In other cases, this is due to the lack of a ‘consequence’ or ‘repercussion’, when selling high-risk chemicals to possibly dubious parties without checking.

Whilst several legislative and non-legislative measures exist at international, EU and national level, these are either not specifically focused on the security risks associated with certain chemicals or do not cover the entire EU. This implies that substances which may be restricted or controlled in one country can be easily obtained in another.

Binding measures adopted at international level mainly focus on the security of chemicals used for weapons, such as the Chemical Weapons Convention.22 Looking at the question of access to high-risk materials by parties outside the EU, measures at international23, EU24 and Member States level exist, focusing mainly on the control of the export of dual-use items.

Related to the issue of chemicals, the bulk of the legislative framework adopted at EU level has a safety purpose. The main instrument in this framework is REACH.25 With very few exceptions this framework does not regulate security-related aspects or the access to high-risk chemicals in particular.

The measures set up by Member States to address the issue of access to chemicals vary significantly. In some Member States, chemical companies are legally bound to document their deliveries. Even in Member States with a regulatory framework, existing legislative measures are often backed up and complemented by voluntary measures.

Industry has set up several voluntary programmes. At international level this includes the Responsible Care programme.26 This world-wide programme covers various issues such as transport safety, labour safety, health protection, environmental protection, communication and information of the public. Responsible Care was created to address public concerns about the manufacture, distribution and use of chemicals and it aims at setting up high standards within the industry. Under the Responsible Care programme, for example chemical companies are obliged to regularly submit data on a number of environmental, health and safety performance indicators.

22 ‘Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical

Weapons and on their Destruction’ (the Chemical Weapons Convention – CWC) 23 ‘Export Control List on Chemical Weapons Precursors’ developed under the auspices of the Australia

Group 24 Council Regulation (EC) No. 428/2009 of 5 May 2009 (+COR) setting up a Community regimes for the

control of exports, transfer, brokering ad transit of dual-use items (recast) (and corrigendum) which entered into force on 27 August 2009

25 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals

26 http://www.responsiblecare.org

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:224:0021:0021:EN:PDF

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To date, Responsible Care has been adopted by the chemical industry associations of 53 countries. Responsible Care is implemented by chemical associations at national level, which means it is dependent on a well-organised and well-represented chemical sector. As a result, the implementation of the programme can vary amongst countries.

Whereas the US chemical industry has already developed a security code in the framework of Responsible Care, Cefic27 is now taking steps towards developing a security component within the Responsible Care programme for its members in Europe.

The objective of the EU policy on enhancing the security of explosives is to combat the misuse of explosives and explosive devices for criminal purposes within the EU.

A major landmark in the area of security of explosives was the adoption of the EU Action Plan on Enhancing the Security of Explosives by the Council of the EU on 18 April 2008.28 The Action Plan contains 47 specific measures grouped into horizontal and prevention-, detection- and response-related pillars.

A priority area in the Action Plan is enhancing the security of chemical precursors to explosives, which can be and are used to produce home made explosives. The work currently undertaken by the Commission and supported by Standing Committee on Explosives, an advisory body composed of experts from the EU Member States and representatives of the private sector, focuses on reducing the access to certain precursors (agreed to represent the highest threat) by general public.

Both in the context of CBRN and explosives, certain high-risk chemicals or their precursors are widely used by industry for legitimate purposes. Without hindering the positive uses of such chemicals, the access to high-risk chemicals should be limited.

Where this does not take place already today, the EU and industry should ensure that high-risk chemicals are only delivered to legitimate users. A sufficient customer qualification scheme should be established in this regard, which is proportionate to the risk and cost effective.


General objectives

This study will look into the current practices regarding availability of certain high-risk chemicals to the general public.29 It should put particular emphasis on the trade practices over the internet.30 The study should then identify potential security gaps and make recommendations to improve the security of the supply chain.

Please note that in the framework of the Action Plan on Explosives an impact assessment study has recently been carried out which included a ‘mystery shopping exercise’ for chemical precursors to explosives.31 The Contractor should build on and complement the results already gathered.

Since the trade on the chemical market includes a vast number of substances, a working definition for high-risk chemicals has to be established, taking into account the ongoing work of the CBRN Advisory Group, its sub-groups32, and of the Standing Committee on Explosives Precursors (SCP).

27 European Chemical Industry Council

28 Council 8109/08 29 Action C.10 of the CBRN Action Plan, CBRN Task Force Recommendation No. 10 30 Action C.7 of the CBRN Action Plan, CBRN Task Force Recommendation No. 4 31 Preparatory Study to Inform an Impact Assessment of Potential Legislative and Non-legislative

Restrictions on Chemical Precursors to Explosives, JLS/2009/A1/FWC/025 – 30-CE-0274676/00-20

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Specific objectives

The problem analysis should refer to the following non-exhaustive list of questions:

• Who should get "legal" access to high-risk chemicals? When and where should access be prevented?

• What is the current situation as regards the legal and illegal access of the "general public" and commercial operators to high-risk chemicals?

• What are the current practices providing or limiting access to high-risk chemicals at the different steps of the supply chain, i.e. actual producers33, importers, distributors, wholesalers and retailers, professional users (e.g. using the chemicals as raw material for other industrial processes or for teaching and research purposes), private end-users and consumers, etc.?

• What are the specific features of the trade over the internet as compared to sales by mail-order and retail?

• What are the measures (legislative as well as non-legislative) that specifically target the access to high-risk chemicals and in particular the trade over the internet?

• How are "general public" and "legitimate users" defined, in particular in the context of existing legislation and voluntary measures?

• What are the extent and the tendencies of illegal access to high-risk chemicals?

• Does the trade over internet have a specific role in providing illegal access to high-risk chemicals?

• What are possibly existing security gaps as a result of the analysis above?

The study should analyse all relevant levels:

• International

• EU level

• National

• Industry best practices

• Sub-national if and when relevant

Finally the contractor should also provide recommendations on how to address any security deficits that may be identified.

The potential contractor should consider in its bid and in the inception report any other areas in addition to those covered in these terms of reference to make sure that the study covers all possible

32 See Action H.1 of the CBRN Action Plan 33 There is only a limited number of producers of chemicals – some Member States have no production at

all.

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angles and issues relevant to the access of the general public to high-risk chemicals and the risks associated with the trade of such substances over the internet.

The use of the results will be decided by the Commission after careful evaluation. The outcomes may be used in different ways: policy making, proposals of new legislation or industry standards, proposals of amendments to existing legislation or industry standards, evaluation of policies and of allocation of financial resources, etc.

I.9.3. Methodology

The contractor must propose the methodology that he considers the most suitable to carry out the work and describe it in detail in the proposal, taking into consideration the following elements:

• The study must treat the subject in the most comprehensive manner possible, through analysis of literature, interviews with practitioners, collection of empirical data, etc.




• The contractor should – if possible - also refer to relevant approaches of countries outside the EU, such as the United States, Canada, Australia, Switzerland, Russia, and Japan..




I.9.4. Proposal



I.9.5. Duration


70


















71




Inception meeting


Interim meeting


Final meeting





Place of work

72


Missions


Workshops, Seminars

The contractor may organise workshops and networking activities in order to reinforce the exchange of information with external experts or stakeholders. The contractor will invite the Commission to such activities and will report specifically on the results. The contractor will bear the costs of organisational efforts to set up such events including speakers' fees, costs of the conference room, lunch and translation costs. The contractor shall be responsible for the agenda drafting and planning, selection and invitation of participants and speakers.

Confidentiality






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I.10. LOT 10. STOCKTAKING STUDY ON GOOD PRACTICES IN CBRN TRANSPORT SECURITY

I.10.1. Introduction

Based on an international legislative framework there are several measures and mechanisms in place to tackle safety and security of transport of high consequence dangerous goods (HCDG).

Following the events of 11 September 2001, when terrorists used transport carriers (aircrafts) containing large amounts of fuel qualified as dangerous goods, governments and international organisations saw the need to address the security aspects of the transport of such dangerous goods. As a consequence the United Nations called for an international action in response to such serious threats.

To prevent further terrorist acts and enhance transport security the UN General Assembly called on the Committee of Experts on the Transport of Dangerous Goods and the Globally Harmonized System of the Classification and Labelling of Chemicals to take action. Similarly the resolution was forwarded to the International Maritime Organization (IMO) and the International Civil Aviation Organization (ICAO) for the other transport modes. The discussions and negotiations resulted in the addition of a new Chapter 1.4 to the UN Recommendations on the Transport of Dangerous Goods - Model Regulations published in 2003. This text was handed over to the transport modes to integrate it into the various modal regulations.

In 2005 a set of security provisions (Chapter 1.10) was adopted for the international land modal regulations within the sector: ADR34, ADN35, and RID36. The IMO adopted similar provisions in the International Maritime Dangerous Goods (IMDG) Code. So far the respective ICAO provisions concentrate primarily on cargo placed on passenger aircraft. However, the ICAO Panel plans to undertake this work also for cargo aircraft.

In 2007 the European Commission issued a study37 on the evaluation of the security provisions for the transport of dangerous goods, mainly on Chapter 1.10 of ADR/ADN/RID and the high consequence dangerous goods (HCDG) list. It looked also at enforcement provisions, such as those covered by the Uniform Procedures (Road Checks) Directive38. The study came to the following conclusions:

In general the security rules for HCDG were regarded as effective and as adequate, as they had achieved a balance between safety and security practices, as well as the need to continue the trading of dangerous goods.

Chapter 1.10 in ADR/ADN/RID was regarded as appropriate, but for some minor issues clarification in the form of guidance was suggested.

As regards the HCDG list minor issues were identified.

For other minor shortcomings it was suggested to address the Uniform Procedures Directive and

34 ADR: European Agreement Concerning the International Carriage of Dangerous Goods by Road 35 ADN: European Agreement Concerning the International Carriage of Dangerous Goods by Inland Waterways 36 RID: European Agreement Concerning the International Carriage of Dangerous Goods by Rail 37 Reference: Study TREN/07/ST/S07.76239 by Pira International, concluded in October 2008 38 Council Directive 95/50/EC of 6 October 1995 on uniform procedures for checks on the transport of dangerous goods by road

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to analyse for example the interface with the SEVESO Directive39.

In 2009 some issues presented by the study were further analysed and examined in ad hoc Working Groups and the Transport of Dangerous Goods (TDG) Committee.

From February 2008 till January 2009 the CBRN Task Force discussed the issue of transport of high-risk chemical, biological or radio-active material, bearing in mind that there was a clear overlap of the established HCDG list of substances and the usually circulated lists of (high-risk) CBRN materials.

Due to the high number of substances and the high production volume the discussions in the Task Force focused on the C strand but included as well the B and RN strands. The CBRN Task Force formulated a number of recommendations that were taken up in the subsequent CRBN Action Plan (Action H.11).

The main recommendation was to organise dedicated workshops on transport security with regard to CBRN materials to further analyse unresolved issues. These workshops should bring together experts from the transport sector and other relevant sectors, the security services, law enforcement and supervisory authorities.

According to Action H.11 of the CBRN Action Plan the workshops should address the following issues:

o assess whether existing transport security rules fully cover all CBRN materials;

o identify and exchange good practices in the Member States concerning the transport of CBRN materials (e.g. limited quantities in one transport; or tracking systems);

o assess the need for developing tracking and tracing systems for the transport of CBRN materials;

o identify and exchange good practices concerning the implementation of current ADR, RID, ADN and IMDG Code requirements such as the development of security plans;

o identify security requirements for logistics enterprises for the transport of high-risk CBRN materials;

o consider the implications of a notification system for the international transport of high risk CBRN materials;

o consider the implications and costs/benefits of introducing a requirement that only licensed transporters would be used for the transport of high risk CBRN materials. These licensed transporters would be obliged to follow agreed minimum security requirements;

o assess the possible negative impact of strict requirements for transport on transporters of high risk substances and examine potential remedies.

As an initial step and as input to such workshops it is important to map and assess existing practices as regards CBRN transport security within Member States. This should include voluntary measures by the private sector. As a result this would enable the identification of the most appropriate practices to learn from.

39 Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances

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As further input to the discussion the study should provide an evaluation of such practices and propose measures that could serve as best practice model.


General objective

The study must be conducted in the light of the Commission's policy to prevent the malicious use of CBRN material, and more specifically in the fight against terrorism.

Different Member States are faced with different threat levels and have different levels of experience with terrorist acts. As a consequence there may be an interest in implementing more stringent national measures in certain areas, beyond the requirements of ADR/ADN/RID, etc. Moreover the private sector has also developed voluntary initiatives, such as codes of conduct and guidelines.

In a situation where no border controls exist between most EU Member States such additional national measures or voluntary initiatives concerning the transport of CBRN material are not sufficient. It would be therefore useful that the EU Member States work toward achieving a common position concerning security requirements.

The overall objective of the study is to give an overview of existing policies and practices in the area of the transport security of CBRN material and identify good practices among the cases reviewed (or propose a combination of different practises as a good practice). The study results will serve as input to dedicated workshops of the transport sector with law enforcement, security services, etc.

Together with the study results the outcomes of these dedicated workshops will then be also subject of the discussions in the Transport of Dangerous Goods Committee and the CBRN Advisory group (and its sub-groups). As a result of the discussions in these groups the Commission could consider possible measures to be undertaken at the EU level. This work should then feed into existing international processes, such as under UNECE40 and OTIF41.

Specific objectives

Based on already existing studies42 and ongoing work a number of several specific items need to be discussed.

a) What are the existing legal rules on the transport of CBRN materials? (e.g. ADR/ADN/RID/IMDG, etc.). As most regimes do not refer to CBRN, working definitions for (high-risk) CBRN have to be established for this purpose, especially in relation to HCDG.

b) Are the rules fully implemented?

c) What are the good national practices concerning the transport of CBRN materials going beyond the rules (including voluntary measures by the private sector)? Inter alia this includes an examination of any practices with regard to

40 United Nations Economic Commission for Europe

41 Intergovernmental Organisation for International Carriage by Rail

42 Such as the study referred to under footnote 37.

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a. the requirement of limited quantities of CBRN substances in one transport;

b. telematics, tracking and tracing systems (e.g. mandatory routeing) ;

c. the development of security plans;

d. road checks, inspections and audits at the premises and other activities of law enforcement;

e. general security requirements for logistics enterprises;

f. a notification system for the international transport of CBRN materials;

g. requirements that only licensed transporters would be used for the transport of high risk materials and that these licensed transporters would be obliged to follow agreed minimum security requirements;

h. specific security training;

i. reporting of security incidents (following the reporting requirements for SEVESO incidents);

j. remedies to limit the negative economic impact of strict security requirements on transporters of high risk substances.

d) What are the best practices and which lessons can be learnt for both the Member States and the European level?

I.10.3. Methodology

The contractor must propose the methodology that he considers the most suitable to carry out the work and describe it in detail in the proposal, taking into consideration the following elements:

• The analysis must be primarily carried out based on literature review, as well as information from relevant Member States authorities and from stakeholders operating in each sector.




• The contractor must indicate which Member States they intend to cover. If possible, the contractor could also refer to relevant approaches of countries outside the EU, such as the United States, Switzerland, Russia, Japan, Canada, or Australia.


77



I.10.4. Proposal



I.10.5. Duration











78












Inception meeting


Interim meeting


79

Final meeting


Moreover, the Commission might ask the contractor to participate at a meeting with representatives of the relevant authorities and sectors, such as the CBRN Advisory group and/or the Transport of Dangerous Goods Committee to discuss the final report.



Place of work

The work shall be carried out at the contractor's premises.

Missions


Workshops, Seminars

The contractor may organise networking activities such as workshops in order to reinforce the exchange of information with external experts or stakeholders. The contractor will invite the Commission to such activities and will report specifically on the results. The contractor will bear the costs of organisational efforts to set up such events including speakers' fees, costs of the conference room, lunch and translation costs. The contractor shall be responsible for the agenda drafting and planning, selection and invitation of participants and speakers.

Confidentiality





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II. TERMS OF CONTRACT

In drawing up his offer, the tenderer should bear in mind the provisions of the draft contract attached to this invitation to tender (Annex 7). Any limitation, amendment or denial of the terms of contract will lead to automatic exclusion from the procurement procedure.

The Commission may, before the contract is signed, either abandon the procurement procedure or cancel the award procedure without the tenderers being entitled to claim any compensation.

II.1. Terms of payment

Payments shall be made in accordance with the provisions specified in Annex 7, the draft service contract

II.2. Financial guarantees

Guarantee on pre-financing

For any pre-financing higher than EUR 150.000,00 a financial guarantee equivalent to the amount of the pre-financing will be requested.

Depending on the financial situation of the tenderer, the Commission may ask for the financial guarantee for amounts lower than 150.000,00 EUR.

II.3. Subcontracting

If the tenderer intends to subcontract part of the service, he shall indicate in his offer which part will be subcontracted and to what extend (% of the total contract value).

Tenderers must ensure that Article II.17 of the contract (Annex 7) can be applied to subcontractors.

II.4. Legal form to be taken by the grouping of service providers to whom the contract is awarded (if applicable)

Groupings, irrespective of their legal form, may submit bids. Tenderers may, after forming a grouping, submit a joint bid on condition that it complies with the rules of competition. Such groupings (or consortium) must specify the company or person heading the project and must also submit a copy of the document authorising this company or person to submit a bid. If awarded, the contract will be signed by the company of the person heading the project, who will be, vis à vis the Commission, the only contracting party responsible for the performance of this contract. Tenders from a consortium of firms or groups of service providers, contractors or suppliers must specify the role, qualifications and experience of each member of the consortium or group. Each member must provide all the necessary documents for assessing the bid as a whole with regard to the exclusion criteria, selection criteria (all of them) and award criteria.

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III. FORM AND CONTENT OF THE TENDER

III.1. General

Tenders must be written in one of the official languages of the European Union.

Tenders must be clear and concise, with continuous page numbering, and assembled in a coherent fashion (e.g. bound or stapled, etc…). Since tenderers will be judged on the content of their written bids, they must make it clear that they are able to meet the requirements of the specifications.

III.2. Structure of the tender

All tenders must include three sections:

1) Administrative informations and documents related to the exclusion and selection criteria;

2) Technical proposal;

3) Financial proposal.

III.2.1. Section One: administrative proposal

a) Administrative informations

This section must provide the following information, set out in the standard identification forms attached to these tender specifications (Annexes 1, 2 and 3):

• 1) Tenderers’ identification (Annex 1)

− All tenderers must provide proof of registration, as prescribed in their country of establishment, on one of the professional or trade registers or provide a declaration or certificate.

− If the tenderer is a natural person, he/she must provide a copy of the identity card/passport or driving licence and proof that he/she is covered by a social security scheme as a self-employed person.

Each tenderer (including subcontractor(s) or any member of a consortium or grouping) must complete and sign the identification forms in Annex 1 and also provide above-mentioned documents.

However, the subcontractor(s) shall not be required to fill in or provide those documents when the services represent less than 20% of the contract.

• 2) Financial identification (Annex 2)

The bank identification form must be filled in and signed by an authorised representative of the tenderer and his/her banker. A standard form is attached in Annex 2 and a specific form for each Member State is available at the following Internet address:

http://ec.europa.eu/budget/execution/ftiers_en.htm


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In the case of a grouping, this form must only be provided by the person heading the project.

• 3) Legal entities (Annex 3)

The legal entity form in Annex 3 must be filled in and should be accompanied by a number of supporting documents, available on the Web site:

http://ec.europa.eu/budget/execution/legal_entities_en.htm In the case of a grouping, this form must only be provided by the person heading the project.

The Commission reserves the right, however, to request additional evidence in relation to the bid submitted for evaluation or verification purposes within a time-limit stipulated in its request.

b) Information regarding exclusion and selection criteria:

For the exclusion criteria the tenderer is request to submit:

1. Declaration by the Tenderer relating to the exclusion criteria (see IV.1.3)

2. Documents certifying economic and financial capacity (see IV.2.1)

3. Prove of technical and professional capacity (see IV.2.2)

III.2.2. Section Two: Technical proposal

This technical section is of great importance in the assessment of the bids, the award of the contract and the future execution of any resulting contract.

The attention of biderers is specially drawn to the award criteria, which define those parts of the technical proposal to which the tenderers should pay particular attention. The technical proposal should address all matters laid down in the specifications and should include models, examples and technical solutions to problems raised in the specifications. The level of detail of the tender will be extremely important for the evaluation of the tender. Tenderers must present in their bids a proposal on the methodology and the organisation of the work to carry out in the framework of the study.

The technical proposal must provide all the information needed for the purpose of awarding the contract.

The technical description and the work plan must be described in a clearly identified section in the offer. These sections should describe how the work will be organised including a description of the tasks and processes foreseen to meet the objectives of the study. The contractor is invited to propose and justify, if relevant, additional elements to be included in the study to ensure the appropriate achievement of the objectives. The technical description must also describe how the contractor will engage with the stakeholders during the study. It must contain a detailed planning of the resources associated with the tasks and CVs of the experts involved in the study. A time plan for the development of the work must also be included and illustrated with clear charts.

http://ec.europa.eu/budget/execution/legal_entities_en.htm

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III.2.2.1. Documents to be presented in the technical proposal. The tender will be presented in a structured way and will contain the following: 1. Understanding of the objectives and tasks of the study and appropriateness of the risk assessment to achieve the expected results and of the risk-mitigation strategy. 2. Proposed approach, tools and methodology to develop efficient and appropriate services meeting the requirements. 3. Proposed team organisation and structure which will be put in place to achieve the expected results. Details should be given on the allocation of staff profiles to different tasks. The description of the lines of reporting should be part of this section. 4. Proposed detailed action plan describing how the tenderer wants to achieve the delivery of the services within the contractual timeframe.

III.2.3. Section Three: Financial proposal

All tenders must contain a financial proposal to be soubmited according to the form attached in Annex 5. The tenderer's attention is drawn to the following points:

- Prices must be quoted in euros, including the countries which are not in the euro-area. As far as the tenderers of those countries are concerned, they cannot change the amount of the bid because of the evolution of the exchange rate. The tenderers choose the exchange rate and assume all risks or opportunities relating to the rate fluctuation.

- Prices must be fixed amounts and include all expenses, such as travel expenses and daily allowances.

- Prices should be quoted free of all duties, taxes and other charges, i.e. also free of VAT, as the Communities are exempt from such charges in the EU under Articles 3 and 4 of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965 (OJ L 152 of 13 July 1967). Exemption is granted to the Commission by the governments of the Member States, either through refunds upon presentation of documentary evidence or by direct exemption. For those countries where national legislation provides an exemption by means of a reimbursement, the amount of VAT is to be shown separately. In case of doubt about the applicable VAT system, it is the tenderer's responsibility to contact his or her national authorities to clarify the way in which the European Community is exempt from VAT;

- Prices shall be fixed and not subject to revision during the performance of the contract;

- All unit costs should clearly appear. Management as well as travel and accommodation costs should be highlighted in the estimate.

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IV. ASSESSMENT AND AWARD OF THE CONTRACT

The assessment will be based on each tenderer's bid.

All the information will be assessed in the light of the criteria set out in these specifications. The procedure for the award of the contract, which will concern only admissible bids, will be carried out in three successive stages.

The aim of each of these stages is:

1) to check on the basis of the exclusion criteria, whether tenderers can take part in the tendering procedure;

2) to check on the basis of the selection criteria, the technical and professional capacity and economic and financial capacity of each tenderer;

3) to assess on the basis of the award criteria each bid which has passed the exclusion and selection stages.

It has to be noted that the selection and award criteria are the same for all the Lots of this call for tender but that the evidence to be provided by the tenderer will be assessed with regard to the requirements of the considered Lot by the Evaluation Committee.

IV.1. Exclusion criteria (exclusion of tenderers)

IV.1.1. Exclusion criteria (Article 93 Financial Regulation43)

To be eligible for participating in this contract award procedure, tenderers must not be in any of the following situations:

(a) they are bankrupt or being wound up, are having their affairs administered by the courts, have entered into an arrangement with creditors, have suspended business activities, are the subject of proceedings concerning those matters, or are in any analogous situation arising from a similar procedure provided for in national legislation or regulations;

(b) they have been convicted of an offence concerning their professional conduct by a judgement which has the force of res judicata;

(c) they have been guilty of grave professional misconduct proven by any means which the contracting authority can justify;

(d) they have not fulfilled obligations relating to the payment of social security contributions or the payment of taxes in accordance with the legal provisions of the country in which they are established or with those of the country of the contracting authority or those of the country where the contract is to be performed;

(e) they have been the subject of a judgement which has the force of res judicata for fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the Communities' financial interests44;

43 Council Regulation (EC, Euratom) n° 1605/2002 of 25 june 2002 on the Financial regulation applicable to the general budget of the European

Communities, OJ L 248 of 16 September 2002, p. 1, amended by Council Regulation (EC, Euratom) n° 1995/2006 of 13 December 2006, OJ L 390 of 30 December 2006, p.1.

44 a) cases of fraud as referred to in Article 1 of the Convention on the protection of the European Communities' financial interests established by the Council Act of 26 July 1995 (OJ/C 316 of 27.11.1995, p. 48);

b) cases of corruption as referred to in Article 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, established by the Council Act of 26 May 1997 (OJ/C 195 of 25.6.1997, p. 1); c) cases of involvement in a criminal organisation, as defined in Article 2(1) of Joint Action 98/733/JHA of the Council (OJ/L 315 of 29.12.1998, p. 1); d) cases of money laundering as defined in Article 1 of Council Directive 91/308/EEC (OJ/L 166 of 28.6.1991, p.77).

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(f) they are currently subject to an administrative penalty referred to in Article 96(1) of Financial Regulation.

IV.1.2. Other cases of exclusion (Article 94 Financial Regulation)

Contracts will not be awarded to tenderers who, during the procurement procedure:

a) are subject to a conflict of interest;

Tenderers must declare:

- that they do not have any conflict of interest in connection with the contract; a conflict of interest could arise in particular as a result of economic interests, political or national affinities, family or emotional ties, or any other relevant connection or shared interest;

- that they will inform the contracting authority, without delay, of any situation constituting a conflict of interest or which could give rise to a conflict of interest;

- that they have not made and will not make any offer of any type whatsoever from which an advantage can be derived under the contract;

- that they have not granted and will not grant, have not sought and will not seek, have not attempted and will not attempt to obtain, and have not accepted and will not accept, any advantage, financial or in kind, to or from any party whatsoever, constituting an illegal practice or involving corruption, either directly or indirectly, as an incentive or reward relating to the award of the contract.

The Commission reserves the right to check the above information.

b) are guilty of misrepresentation in supplying the information required by the contracting authority as a condition of participation in the procurement procedure or fail to supply this information;

IV.1.3. Evidence to be provided by the tenderers

1. When submitting their bids, each tenderer (including subcontractor(s) or any member of a consortium or grouping) shall provide a declaration on their honour, duly signed and dated, stating that they are not in one of the situations mentioned above (cf. IV.1.1 and VI.1.2). For that purpose, they must complete and sign the form attached in Annex 4. Where the tenderer is a legal entity, they shall, whenever requested by the Commission, provide information on the ownership or on the management, control and power of representation of the legal entity.

2. The tenderer to whom the contract is to be awarded (including any member of a

consortium or grouping) shall provide, within 14 calendar days after notification of the results of the procurement procedure and in any case before the signature of the contract, the following evidence, confirming the declaration referred to above:

The Commission shall accept, as satisfactory evidence that the tenderer is not in one of the situations described in point IV.1.1 (a), (b) or (e) above, a recent extract from the judicial record or, failing that, an equivalent document recently issued by a judicial or administrative authority in the country of origin or provenance showing that those requirements are satisfied.

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The Commission accepts, as satisfactory evidence that the tenderer is not in the situation described in point IV.1.1 (d) above, a recent certificate issued by the competent authority of the State concerned.

Where no such document or certificate is issued in the country concerned, it may be replaced by a sworn or, failing that, a solemn statement made by the interested party before a judicial or administrative authority, a notary or a qualified professional body in his country of origin or provenance.

3. Depending on the national legislation of the country in which the candidate or tenderer is established, the documents referred to in paragraph 1 and 2 above shall relate to legal and/or natural persons including, if applicable with regard to points b) and e), company directors or any person with powers of representation, decision-making or control in relation to the tenderer.

4. When the subcontracted part is above 20% of the contract value, the subcontractor(s) must also provide the above-mentioned declaration on honour. In case of doubt on this declaration on the honour, the contracting authority may also request the evidence referred to in paragraphs 2 and 3 above.

5. The Commission reserves the right to request any other document relating to the proposed tender for evaluation and verification purpose, within a delay determined in its request.

Remark:

The tenderers will be waived of the obligation to submit the documentary evidence above mentioned if such evidence has already been submitted for the purposes of another procurement procedure launched by Directorate General Home Affairs provided that the documents are not more than one year old starting from their issuing date and that they are still valid. In such a case, the tenderer shall declare on his honour that the documentary evidence has already been provided in a previous procurement procedure, specifying the reference of the call for tender for which the documents have been provided, and confirm that no changes in his situation have occurred.

IV.2. SELECTION CRITERIA (SELECTION OF TENDERERS)

To be eligible, the tenderers must have the economic and financial capacity as well as the technical and professional capacity to perform the tasks required in the considered Lot of this call for tender.

IV.2.1. Economic and financial capacity – References required

Tenderers must provide proof of their financial and economic capacity by means of the following documents:

- the balance sheets or extracts from balance sheets for the last three financial years,

- a statement of overall turnover and turnover relating to the relevant services for the last three financial years.

- completed "Simplified balance sheet" and "Simplified Profit & Loss Account" (Annex 5), filled in for 3 years

This rule applies, for each Lot, to all service providers, regardless of the percentage of tasks they intend to execute, once they have chosen to submit a tender. However, if the tender

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includes subcontractors whose tasks represent less than 20% of the contract, those subcontractors are not obliged to provide evidence of their economic and financial capacity.

IV.2.2. Technical and professional capacity – References required

The tenderer must comply with the following criteria:

• have previous experience and insight in legal aspects of the field covered by the study (for the considered Lot);

• be able to mobilise a team with very good knowledge about technical, operational, organisational and legal requirements in the field covered by the study (for the considered Lot);

Working experience requirements a) At least 5 years of professional experience in the field covered by the study/considered Lot for

“senior staff”;

b) At least 3 years of professional experience in the field covered by the study/considered Lot for “junior staff”.

The Contracting Authority shal accept the following as evidence of compliance with the above criteria:

1) Tenderers should provide with their offer detailed curriculum vitae of each staff member responsible for carrying out the work, including his or her educational background, degrees and diplomas, professional experience, research work, publications and linguistic skills. The CV's shall be presented, preferably, in accordance to the Commission Recommendation on a common European format for curricula vitae, published in OJ L79 of 22 March 2002, p. 66.

2) A list of the principal services of the same type provided in the past five years, with the sums, dates and recipients, whether public or private, of the services provided, together with certificates issued or countersigned by public authorities or by private clients or, failing this, simply declared by the service provider to have been effected. a list of relevant activities and services provided in the past three years, with the sums, dates and recipients, public or private;

3) A statement of the average annual manpower and the number of managerial staff of the service provider or Contractor in the last three years;

Remark: If several service providers/subcontractors are involved in the bid, each of them must have and show that they have the professional and technical capacity to perform the tasks assigned to them.

IV.3. EVALUATION OF TENDERS – AWARD CRITERIA APPLICABLE TO ALL LOTS

The contract will be awarded according to the criteria given below, on the basis of the economically most advantageous tender.

Only bids that have reached a total score of a minimum of 75% and a minimum score of 60 % for each criterion will be taken into consideration for awarding the contract.

a) Technical evaluation criteria in their order of importance as weighted by percentage

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The quality of the tender will be awarded a score out of 100. The qualitative criteria will be weighted as follows:

N° Award Criteria Weighting

1 Understanding of the objectives and tasks of the study and appropriateness of the risk assessment to achieve the expected results and of the risk-mitigation strategy

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2 Project management and accurateness of the team organisation and structure which will be put in place to achieve the expected results - resources allocated to the tasks and way in which the tenderer intends to cover the maximum of 27 EU Member States and any additional country (min. 15 Member States) within the given timeframe.

Details should be provided, using the form in Annex VI, on the composition of the team (total number of people directly involved in working on the study, number of man/days for each task, each person/grade/level of experience) and the level of direct participation by senior experts should be clearly indicated

Particular attention will be given to:

- Distribution of efforts between tasks; - Composition of the proposed team and balance between the proposed profiles with regards to the required tasks.

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3 Clarity and relevance of the proposed approach and methodology (identification of adequate sources of information, sampling methodology, data collection method and analysis, adequate coverage of the 27 Member States and any additional country (min. 15 Member States) and use of the information to achieve the results set out in the Specifications for the considered Lot).

The evaluation of such methodology will take into consideration factors like:

- Information gathering: methods used, organisations proposed to contact; - Comprehensiveness and relevance with regard to the aim specified in the technical specifications.

40

4 Efficiency of proposed detailed action plan describing how the tenderer wants to achieve the delivery of the services within the contractual timeframe.

15

Total number of points 100

Remarks:

90

Tenderers’ attention is drawn to the fact that the Commission will be in a position to make a proper assessment of the tenders on the basis of the above qualitative criteria only if they contain full particulars relating to all aspects of the relevant specifications. Lack of detail and vague and perfunctory information will be penalised.

As the tenders will be evaluated on the basis of the quality of the services proposed, they should fully explore all the points included in the relevant specifications so as to obtain the best possible mark.

Simply repeating the guidelines given in the relevant specifications of this invitation to tender without going into detail or expanding on them will result in a very poor mark.

Furthermore, if any essential points of the relevant specifications are not expressly covered by the tender, the Commission may decide to give a zero mark for the relevant quality award criteria.

b) Financial criteria

The contract will be awarded to the tender which offers the best value for money.

The evaluation will be made by awarding each tender a number of points calculated as follows:

Number of "quality" points * 1000 Price of the tender

V. INFORMATION FOR TENDERERS

The Commission will inform tenderers of decisions reached concerning the award of the contract, including the grounds for any decision not to award a contract or to recommence the procedure.

If a written request is received, the Commission will inform all rejected tenderers of the reasons for their rejection and all tenderers submitting an admissible tender of the characteristics and relative advantages of the selected tender and the name of the successful tenderer.

However, certain information may be withheld where its release would impede law enforcement or otherwise be contrary to the public interest, or would prejudice the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.

VI. ADMINISTRATIVE AND FINANCIAL PENALTIES

Without prejudice to the application of penalties laid down in the contract, candidates or tenderers and contractors who have been found guilty of misrepresentation in supplying the information required by the contracting authority as a condition of participation in the procurement procedure or have failed to supply this information or have been declared to be in serious breach of their obligations under contracts covered by the Community budget may be subject to administrative or financial penalties, in accordance with Article 96 of the Financial Regulation and Articles 133 and 134b of the Implementing Rules.45

45 Commission Regulation (EC, Euratom) n° 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council

Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 357 of 31 December 2002, p. 1, last amended by Commission Regulation (EC, Euratom) n° 478/2007 of 23 April 2007, OJ L 111 of 28 April 2007, p.1.

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VII. ANNEXES

1. Identification of the Tenderer

2. Financial Identification

3. Legal Entity Form

4. Declaration by the Tenderer (relating to the exclusion criteria)

5. Simplified balance sheet Form + profit & loss account Form

6. Financial offer Form

7. Draft Service Contract

ANNEX 1

IDENTIFICATION OF THE TENDERER

(Each service provider , including subcontractor(s) or any member of a consortium or grouping, must complete and sign this identification form)

Call for tender HOME/2010/ISEC/PR/038-A1

Identity

Name of the tenderer

Legal status of the tenderer

Date of registration

Country of registration

Registration number

VAT number

Description of statutory social security cover (at the level of the Member State of origin) and non-statutory cover (supplementary professional indemnity insurance)46

Address

Address of registered office of tenderer

Where appropriate, administrative address of tenderer for the purposes of this invitation to tender

Contact Person

Surname: First name: Title (e.g. Dr, Mr, Ms) : Position (e.g. manager): Telephone number: Fax number: E-mail address:

Legal Representatives

46 For natural persons

Names and function of legal representatives and of other representatives of the tenderer who are authorised to sign contracts with third parties

Declaration by an authorised representative of the organisation47

I, the undersigned, certify that the information given in this tender is correct and that the tender is valid.

Surname: First name:

Signature:

− All tenderers must provide proof of registration, as prescribed in their country of establishment, on one of the professional or trade registers or provide a declaration or certificate.

− If the tenderer is a natural person, he/she must provide a copy of the identity card/passport or driving licence and proof that he/she is covered by a social security scheme as a self-employed person.

47 This person must be included in the list of legal representatives; otherwise the signature on the tender will be invalidated.

ANNEX 2

(to be completed by the tenderer and his or her financial institution)

The tenderer's attention is drawn to the fact that this document is a model and that a specific form for each Member State is available at the following Internet address:



FINANCIAL IDENTIFICATION

ACCOUNT HOLDER

NAME

ADDRESS

TOWN/CITY POSTCODE

COUNTRY VAT NUMBER

CONTACT PERSON

TELEPHONE FAX

E - MAIL

BANK

BANK NAME

BRANCH ADDRESS

TOWN/CITY POSTCODE

COUNTRY

ACCOUNT NUMBER

IBAN (optional)

REMARKS :

BANK STAMP + SIGNATURE of BANK REPRESENTATIVE DATE + SIGNATURE of ACCOUNT HOLDER :(Both Obligatory) (Obligatory)

ANNEX 3

Legal entity form

Complete the legal entity form, which should be accompanied by a number of supporting documents, available on the Web site:

http://ec.europa.eu/budget/execution/legal_entities_en.htm Please note that we can only accept either original documents or certified copies, which must be less than 6 months old.

In the case of a grouping, this form must only be provided by the person heading the project.

http://ec.europa.eu/budget/execution/legal_entities_en.htm

ANNEX 4

DECLARATION BY THE TENDERER

Declaration of honour with respect to the Exclusion Criteria and absence of conflict of interest

The undersigned [name of the signatory of this form, to be completed]: ……………………………………………………

in his/her own name (if the economic operator is a natural person or in case of own declaration of a director or person with powers of representation, decision making or control over the economic operator48)

or representing (if the economic operator is a legal person)

Official name in full (only for legal person): ……………………………………………………….

Official legal form (only for legal person): ………………………………………………………….

Official address in full: ………………………………………………………………………………

VAT registration number: …………………………

declares that the company or organisation that he/she represents / he/she: a) is not bankrupt or being wound up, is not having its affairs administered by the courts, has not

entered into an arrangement with creditors, has not suspended business activities, is not the subject of proceedings concerning those matters, and is not in any analogous situation arising from a similar procedure provided for in national legislation or regulations;

b) has not been convicted of an offence concerning professional conduct by a judgment which has the force of res judicata;

c) has not been guilty of grave professional misconduct proven by any means which the contracting authorities can justify;

d) has fulfilled all its obligations relating to the payment of social security contributions and the payment of taxes in accordance with the legal provisions of the country in which it is established, with those of the country of the contracting authority and those of the country where the contract is to be carried out;

e) has not been the subject of a judgement which has the force of res judicata for fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the Communities’ financial interests;

f) is not a subject of the administrative penalty for being guilty of misrepresentation in supplying the information required by the contracting authority as a condition of participation in the procurement procedure or failing to supply an information, or being declared to be in serious breach of his obligation under contract covered by the budget.

48 To be used depending on the national legislation of the country in which the candidate or tenderer is established

In addition, the undersigned declares on their honour:

g) they have no conflict of interest in connection with the contract; a conflict of interest could arise in particular as a result of economic interests, political or national affinities, family or emotional ties or any other relevant connection or shared interest;

h) they will inform the contracting authority, without delay, of any situation considered a conflict of interest or which could give rise to a conflict of interest;

i) they have not made and will not make any offer of any type whatsoever from which an advantage can be derived under the contract;

j) they have not granted and will not grant, have not sought and will not seek, have not attempted and will not attempt to obtain, and have not accepted and will not accept any advantage, financial or in kind, to or from any party whatsoever, constituting an illegal practice or involving corruption, either directly or indirectly, as an incentive or reward relating to award of the contract.

k) that the information provided to the Commission within the context of this invitation to tender is accurate, sincere and complete.

l) that in case of award of contract, they shall provide the evidence that they are not in any of the situations described in points a, b, d, e above49.

For situations described in (a), (b) and (e), production of a recent extract from the judicial record is required or, failing that, a recent equivalent document issued by a judicial or administrative authority in the country of origin or provenance showing that those requirements are satisfied. Where the Tenderer is a legal person and the national legislation of the country in which the Tenderer is established does not allow the provision of such documents for legal persons, the documents should be provided for natural persons, such as the company directors or any person with powers of representation, decision making or control in relation to the Tenderer. For the situation described in point (d) above, recent certificates or letters issued by the competent authorities of the State concerned are required. These documents must provide evidence covering all taxes and social security contributions for which the Tenderer is liable, including for example, VAT, income tax (natural persons only), company tax (legal persons only) and social security contributions. For any of the situations (a), (b), (d) or (e), where any document described in two paragraphs above is not issued in the country concerned, it may be replaced by a sworn or, failing that, a solemn statement made by the interested party before a judicial or administrative authority, a notary or a qualified professional body in his country of origin or provenance.]

By signing this form, the undersigned acknowledges that they have been acquainted with the administrative and financial penalties described under art 133 and 134 b of the Implementing Rules (Commission Regulation 2342/2002 of 23/12/02), which may be applied if any of the declarations or information provided prove to be false. Full name Date Signature 49 Mandatory for contracts of value above €133 000 only. The contracting authority can nevertheless request such evidence for contracts with a lower value.

ANNEXE 5

SIMPLIFIED BALANCE SHEET Total value of contract EC pre-financing / EC intermediary payments Duration of contract (in years) Currency …. Unit …. Year N N-1 N-2

Assets Fixed assets (a) Current assets (b = c+d+e) 0 0 0 of which: Stocks ( c) Cash (d) Other current assets( e)

Total assets (A = a+b) 0 0 0

Liabilities (B=f+g) 0 0 0 of which, Short term liabilities (f) Long term liabilities (g)

Net assets (Own Funds) (C= A-B) 0 0 0


Legal representative' s name

Signature

ANNEXE 5

SIMPLIFIED PROFIT & LOSS ACCOUNT Currency …. Unit …. Year N N-1 N-2 Operating income Operating expenses

Gross operating profit/loss 0 0 0 depreciation Net operating profit/loss 0 0 0 Financial income Financial expenses Profit/Loss on ordinary activity 0 0 0 19. Extraordinary income Extraordinary expenses 20. Profit tax

21. Profit/Loss for the financial year 0 0 0


Legal representative' s name

Signature

ANNEX 6 Financial offer form

ANNEX VI Invitation to tender HOME/2010/ISEC/PR/038-A1

Service providers Level of expertise

Task: e.g. project management

Task : (complete)

Task : (complete)

Task : (complete)

Task : (complete)

Task : (complete)

Add as many columns as necessary for your methodology

TOTAL

RESOURCES

Name of tenderer and, where applicable, names of partners or subcontractors which will perform this task

Senior or junior

Number of days

Number of days

Number of days

Number of days

Number of days

Number of days Number of days Number of

days

Estimated breakdown of price, as a guide

1 EUR

2 EUR

3, etc. EUR

TOTAL SENIOR STAFF (persons/days) EUR

1 EUR

2 EUR

3, etc. EUR

TOTAL JUNIOR STAFF (persons/days) EUR

A. OVERALL STAFF TOTAL (PERSONS/DAYS) EUR

B. TRAVEL AND SUBSISTENCE- specify each trip, including number of people and duration in days - indicate costs per person Location duration number of persons Trip 1 TRIP 2 ETC.

EUR

C. OTHER COSTS - specify any other costs and price per item Item 1 Item 2 etc.

EUR

Financial bid: FIXED PRICE, NOT SUBJECT TO REVISION AND INCLUSIVE OF ALL EXPENSES: EUR ……

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ANNEX 7

EUROPEAN COMMISSION DIRECTORATE-GENERAL HOME AFFAIRS Directorate Internal Security Director

DRAFT SERVICE CONTRACT

DRAFT CONTRACT NUMBER – HOME/2010/ISEC/PR/038-A1 The European Community (hereinafter referred to as "the Community"), represented by the Commission of the European Communities (hereinafter referred to as "the Commission"), which is represented for the purposes of the signature of this contract by Reinhard Priebe, Director of Security, Directorate-General Home Affairs of the one part, and [official name in full] [official legal form] (Delete if contractor is a natural person or a body governed by public law.)]

[statutory registration number] Delete if contractor is a body governed by public law. For natural persons, indicate the number of their identity card or, failing that, of their passport or equivalent [official address in full]

VAT registration number: xxxx (hereinafter referred to as "the Contractor"), represented for the purposes of the signature of this contract by [name in full and function,] of the other part,

2

HAVE AGREED

the Special Conditions and the General Conditions below and the following Annexes:

Annex I – Tender Specifications (Invitation to Tender No [complete] of [complete]) and Monitoring

Annex II – Contractor's Tender (No [complete] of [complete]) which form an integral part of this contract (hereinafter referred to as “the Contract”). The terms set out in the Special Conditions shall take precedence over those in the other parts of the Contract. The terms set out in the General Conditions shall take precedence over those in the Annexes. The terms set out in the Tender Specifications (Annex I) shall take precedence over those in the Tender (Annex II). Subject to the above, the several instruments forming part of the Contract are to be taken as mutually explanatory. Ambiguities or discrepancies within or between such parts shall be explained or rectified by a written instruction issued by the Commission, subject to the rights of the Contractor under Article I.7 should he dispute any such instruction.

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I – SPECIAL CONDITIONS ARTICLE I.1 - SUBJECT I.1.1. The subject of the Contract is Studies related to the implementation of the EU CBRN

Action Plan (LOT XX). I.1.2. The Contractor shall execute the tasks assigned to him in accordance with the Tender

Specifications annexed to the Contract (Annex I). ARTICLE I.2 - DURATION I.2.1. The Contract shall enter into force on the date on which it is signed by the last contracting

party. I.2.2. Execution of the tasks may under no circumstances begin before the date on which the

Contract enters into force. I.2.3. The duration of the tasks shall not exceed XX months. This period and all other periods

specified in the Contract are calculated in calendar days. Execution of the tasks shall start from date of entry into force of the Contract. The period of execution of the tasks may be extended only with the express written agreement of the parties before such period elapses.

I.2.4. Not applicable

ARTICLE I.3 – CONTRACT PRICE I.3.1. The maximum total amount to be paid by the Commission under the Contract shall be EUR

…….. [………………… euro] covering all tasks executed. I.3.2 Not applicable

I.3.3. Not applicable

ARTICLE I.4 – PAYMENT PERIODS AND FORMALITIES Payments under the Contract shall be made in accordance with Article II.4. Payments shall be executed only if the Contractor has fulfilled all his contractual obligations by the date on which the invoice is submitted. Payment requests may not be made if payments for previous periods have not been executed as a result of default or negligence on the part of the Contractor. I.4.1. Pre-financing: Pre-financing equal to 30 % of the total amount referred to in Article I.3.1 is applicable for

contracts over EUR 250.000

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[For any pre-financing higher than EUR 150.000,00 a financial guarantee equivalent to the amount of the pre-financing will be requested.

Depending on the financial situation of the tenderer, the Commission may ask for the financial guarantee for amounts lower than 150.000,00 EUR]

I.4.2 Interim payment:

Requests for interim payment by the Contractor shall be admissible if accompanied by :

• an interim technical report in accordance with the instructions laid down in Annex I.

• the relevant invoices

provided the report has been approved by the Commission. The Commission shall have thirty days from receipt to approve or reject the report, and the Contractor shall have twenty days in which to submit additional information or a new report. Within 30 days of the date on which the report is approved by the Commission, an interim payment corresponding to EUR [complete amount in figures and in words] equal to 40 % of the total amount referred to in Article I.3.1 shall be made.

I.4.3. Payment of the balance:

The request for payment of the balance of the Contractor shall be admissible if accompanied by

• the final technical report in accordance with the instructions laid down in Annex I

• the relevant invoices

provided the report has been approved by the Commission. The Commission shall have forty-five days from receipt to approve or reject the report, and the Contractor shall have twenty days in which to submit additional information or a new report. Within 30 days of the date on which the report is approved by the Commission, payment of the balance corresponding to [EUR complete amount in figures and in words ] equal to 60 % of the total amount referred to in Article I.3.1 shall be made. For Contractors established in Belgium, the provisions of the Contract constitute a request for VAT exemption No 450, provided the Contractor includes the following statement in his invoice(s): “Exonération de la TVA, article 42, paragraphe 3.3 du code de la TVA” or an equivalent statement in the Dutch or German language. For Contractors established in Italy, the provisions of the Contract constitute a request for VAT exemption, provided the Contractor includes the following statement in his invoice(s): “Operazione non imponibile ai sensi dell’articolo 72, comma 3) paragrafo 3 del D.P.R. n. 633

5

del 26/10/1972 come modificato da ultimo dal D.L. n. 323 del 20/06/1996 convertito in Legge n. 425 dell’8/8/1996”.

ARTICLE I.5 – BANK ACCOUNT Payments shall be made to the Contractor’s bank account denominated in euro, identified as follows:

Name of bank: [xxxx]

Address of branch in full: [xxxxxx]

Exact designation of account holder: [xxxxx]

Full account number including codes: [xxxxx]

IBAN code: [xxxxx] ARTICLE I.6 – GENERAL ADMINISTRATIVE PROVISIONS Any communication relating to the Contract shall be made in writing and shall bear the Contract number. Ordinary mail shall be deemed to have been received by the Commission on the date on which it is registered by the department responsible indicated below. Communications shall be sent to the following addresses:

Commission: Technical matters European Commission Directorate-General Home Affairs Directorate A Internal Security Unit A1 Crisis management and fight against terrorism, LX46 03/093 B-1049 Brussels Administrative matters European Commission Directorate-General Home Affairs Directorate A: Internal Security Unit A4: Financial support – Internal Security, LX 46 6/020 B-1049 Brussels Contractor: Mr/Mrs/Ms [complete] [Function] [Company name] [Official address in full]

ARTICLE I.7– APPLICABLE LAW AND SETTLEMENT OF DISPUTES

I.7.1. The Contract shall be governed by Community law, complemented, where necessary, by the national substantive law of Belgium.

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I.7.2. Any dispute between the parties resulting from the interpretation or application of the Contract which cannot be settled amicably shall be brought before the courts of Brussels.

ARTICLE I.8 – DATA PROTECTION Any personal data included in the Contract shall be processed pursuant to Regulation (EC) No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. It shall be processed solely for the purposes of the performance, management and follow-up of the Contract by entity acting as data controller within Directorate-General Home Affairs (DG HOME) without prejudice to possible transmission to internal audit services, to the European Court of Auditors, to the Financial Irregularities Panel and/or to the European Anti-Fraud Office (OLAF) for the purposes of safeguarding the financial interests of the Community. The Contractor shall have the right of access to his personal data and the right to rectify any such data that is inaccurate or incomplete. Should the Contractor have any queries concerning the processing of his personal data, he shall address them to entity acting as data controller within DG HOME. The Contractor shall have right of recourse at any time to the European Data Protection Supervisor. ARTICLE I.9 – TERMINATION BY EITHER CONTRACTING PARTY Either contracting party may, of its own volition and without being required to pay compensation, terminate the Contract by serving 90 days formal prior notice. Should the Commission terminate the Contract, the Contractor shall only be entitled to payment corresponding to part-performance of the Contract. On receipt of the letter terminating the Contract, the Contractor shall take all appropriate measures to minimise costs, prevent damage, and cancel or reduce his commitments. He shall draw up the documents required by the Special Conditions for the tasks executed up to the date on which termination takes effect, within a period not exceeding sixty days from that date. ARTICLE I.9a – CONTRACT CONCLUDED DURING STANDSTILL PERIOD In case this Contract was signed by both the Commission and the Contractor before the expiry of 14 calendar days from the day after simultaneous dispatch of information about the award decisions and decisions to reject, this Contract shall be null and void. ARTICLE I.10 – OTHER SPECIAL CONDITIONS

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II – GENERAL CONDITIONS ARTICLE II.1 – PERFORMANCE OF THE CONTRACT II.1.1. The Contractor shall perform the Contract to the highest professional standards. The

Contractor shall have sole responsibility for complying with any legal obligations incumbent on him, notably those resulting from employment, tax and social legislation.

II.1.2. The Contractor shall have sole responsibility for taking the necessary steps to obtain any

permit or licence required for performance of the Contract under the laws and regulations in force at the place where the tasks assigned to him are to be executed.

II.1.3. Without prejudice to Article II.3 any reference made to the Contractor’s staff in the Contract

shall relate exclusively to individuals involved in the performance of the Contract. II.1.4. The Contractor must ensure that any staff performing the Contract have the professional

qualifications and experience required for the execution of the tasks assigned to him. II.1.5. The Contractor shall neither represent the Commission nor behave in any way that would

give such an impression. The Contractor shall inform third parties that he does not belong to the European public service.

II.1.6. The Contractor shall have sole responsibility for the staff who execute the tasks assigned to

him.

The Contractor shall make provision for the following employment or service relationships with his staff:

• staff executing the tasks assigned to the Contractor may not be given orders direct by

the Commission; • the Commission may not under any circumstances be considered to be the staff's

employer and the said staff shall undertake not to invoke in respect of the Commission any right arising from the contractual relationship between the Commission and the Contractor.

II.1.7. In the event of disruption resulting from the action of a member of the Contractor's staff

working on Commission premises or in the event of the expertise of a member of the Contractor's staff failing to correspond to the profile required by the Contract, the Contractor shall replace him without delay. The Commission shall have the right to request the replacement of any such member of staff, stating its reasons for so doing. Replacement staff must have the necessary qualifications and be capable of performing the Contract under the same contractual conditions. The Contractor shall be responsible for any delay in the execution of the tasks assigned to him resulting from the replacement of staff in accordance with this Article.

II.1.8. Should any unforeseen event, action or omission directly or indirectly hamper execution of

the tasks, either partially or totally, the Contractor shall immediately and on his own initiative record it and report it to the Commission. The report shall include a description of the problem and an indication of the date on which it started and of the remedial action taken

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by the Contractor to ensure full compliance with his obligations under the Contract. In such event the Contractor shall give priority to solving the problem rather than determining liability.

II.1.9. Should the Contractor fail to perform his obligations under the Contract in accordance with

the provisions laid down therein, the Commission may - without prejudice to its right to terminate the Contract - reduce or recover payments in proportion to the scale of the failure. In addition, the Commission may impose penalties or liquidated damages provided for in Article II.16.

ARTICLE II.2 – LIABILITY II.2.1. The Commission shall not be liable for damage sustained by the Contractor in performance

of the Contract except in the event of wilful misconduct or gross negligence on the part of the Commission.

II.2.2. The Contractor shall be liable for any loss or damage caused by himself in performance of

the Contract, including in the event of subcontracting under Article II.13. The Commission shall not be liable for any act or default on the part of the Contractor in performance of the Contract.

II.2.3. The Contractor shall provide compensation in the event of any action, claim or proceeding

brought against the Commission by a third party as a result of damage caused by the Contractor in performance of the Contract.

II.2.4. In the event of any action brought by a third party against the Commission in connection

with performance of the Contract, the Contractor shall assist the Commission. Expenditure incurred by the Contractor to this end may be borne by the Commission.

II.2.5. The Contractor shall take out insurance against risks and damage relating to performance of

the Contract if required by the relevant applicable legislation. He shall take out supplementary insurance as reasonably required by standard practice in the industry. A copy of all the relevant insurance contracts shall be sent to the Commission should it so request.

ARTICLE II.3 - CONFLICT OF INTERESTS II.3.1. The Contractor shall take all necessary measures to prevent any situation that could

compromise the impartial and objective performance of the Contract. Such conflict of interests could arise in particular as a result of economic interest, political or national affinity, family or emotional ties, or any other relevant connection or shared interest. Any conflict of interests which could arise during performance of the Contract must be notified to the Commission in writing without delay. In the event of such conflict, the Contractor shall immediately take all necessary steps to resolve it.

The Commission reserves the right to verify that such measures are adequate and may

require additional measures to be taken, if necessary, within a time limit which it shall set. The Contractor shall ensure that his staff, board and directors are not placed in a situation which could give rise to conflict of interests. Without prejudice to Article II.1 the Contractor shall replace, immediately and without compensation from the Commission, any member of his staff exposed to such a situation.

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II.3.2. The Contractor shall abstain from any contact likely to compromise his independence. II.3.3. The Contractor declares:

• that he has not made and will not make any offer of any type whatsoever from which an advantage can be derived under the Contract,

• that he has not granted and will not grant, has not sought and will not seek, has not attempted and will not attempt to obtain, and has not accepted and will not accept, any advantage, financial or in kind, to or from any party whatsoever, where such advantage constitutes an illegal practice or involves corruption, either directly or indirectly, inasmuch as it is an incentive or reward relating to performance of the Contract.

II.3.4. The Contractor shall pass on all the relevant obligations in writing to his staff, board, and

directors as well as to third parties involved in performance of the Contract. A copy of the instructions given and the undertakings made in this respect shall be sent to the Commission should it so request.

ARTICLE II.4 – PAYMENTS II.4.1. Pre-financing:

Where required by Article I.4.1, the Contractor shall provide a financial guarantee in the form of a bank guarantee or equivalent supplied by a bank or an authorised financial institution (guarantor) equal to the amount indicated in the same Article to cover pre-financing under the Contract. Such guarantee may be replaced by a joint and several guarantee by a third party.

The guarantor shall pay to the Commission at its request an amount corresponding to payments made by it to the Contractor which have not yet been covered by equivalent work on his part.

The guarantor shall stand as first-call guarantor and shall not require the Commission to have recourse against the principal debtor (the Contractor).

The guarantee shall specify that it enters into force at the latest on the date on which the Contractor receives the pre-financing. The Commission shall release the guarantor from its obligations as soon as the Contractor has demonstrated that any pre-financing has been covered by equivalent work. The guarantee shall be retained until the pre-financing has been deducted from interim payments or payment of the balance to the Contractor. It shall be released the following month. The cost of providing such guarantee shall be borne by the Contractor.

II.4.2. Interim payment:

At the end of each of the periods indicated in Annex I the Contractor shall submit to the Commission a formal request for payment accompanied by those of the following documents which are provided for in the Special Conditions:

an interim technical report in accordance with the instructions laid down in Annex I; the relevant invoices indicating the reference number of the Contract to which they refer; statements of reimbursable expenses in accordance with Article II.7.

If the report is a condition for payment, on receipt the Commission shall have the period of time indicated in the Special Conditions in which:

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to approve it, with or without comments or reservations, or suspend such period and request additional information; or

to reject it and request a new report.

If the Commission does not react within this period, the report shall be deemed to have been approved. Approval of the report does not imply recognition either of its regularity or of the authenticity, completeness or correctness of the declarations or information enclosed.

Where the Commission requests a new report because the one previously submitted has been rejected, this shall be submitted within the period of time indicated in the Special Conditions. The new report shall likewise be subject to the above provisions.

II.4.3. Payment of the balance:

Within sixty days of completion of the tasks referred to in Annex I the Contractor shall submit to the Commission a formal request for payment accompanied by those of the following documents which are provided for in the Special Conditions:

a final technical report in accordance with the instructions laid down in Annex I; the relevant invoices indicating the reference number of the Contract to which they refer; statements of reimbursable expenses in accordance with Article II.7.

If the report is a condition for payment, on receipt the Commission shall have the period of time indicated in the Special Conditions in which:

to approve it, with or without comments or reservations, or suspend such period and request additional information; or

to reject it and request a new report.

If the Commission does not react within this period, the report shall be deemed to have been approved. Approval of the report does not imply recognition either of its regularity or of the authenticity, completeness or correctness of the declarations and information enclosed.

Where the Commission requests a new report because the one previously submitted has been rejected, this shall be submitted within the period of time indicated in the Special Conditions. The new report shall likewise be subject to the above provisions.

ARTICLE II.5 – GENERAL PROVISIONS CONCERNING PAYMENTS II.5.1. Payments shall be deemed to have been made on the date on which the Commission's

account is debited. II.5.2. The payment periods referred to in Article I.4 may be suspended by the Commission at any

time if it informs the Contractor that his payment request is not admissible, either because the amount is not due or because the necessary supporting documents have not been properly produced. In case of doubt on the eligibility of the expenditure indicated in the payment request, the Commission may suspend the time limit for payment for the purpose of further verification, including an on-the-spot check, in order to ascertain, prior to payment, that the expenditure is eligible. The Commission shall notify the Contractor accordingly and set out the reasons for the suspension by registered letter with acknowledgment of receipt or equivalent. Suspension

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shall take effect from the date of dispatch of the letter. The remainder of the period referred to in Article I.4 shall begin to run again once the suspension has been lifted.

II.5.3. In the event of late payment the Contractor shall be entitled to interest, provided the calculated interest exceeds EUR 200. In case interest does not exceed EUR 200, the Contractor may claim interest within two months of receiving the payment. Interest shall be calculated at the rate applied by the European Central Bank to its most recent main refinancing operations (“the reference rate”) plus seven percentage points (“the margin”). The reference rate in force on the first day of the month in which the payment is due shall apply. Such interest rate is published in the C series of the Official Journal of the European Union. Interest shall be payable for the period elapsing from the calendar day following expiry of the time limit for payment up to the day of payment. Suspension of payment by the Commission may not be deemed to constitute late payment.

ARTICLE II.6 – RECOVERY II.6.1. If total payments made exceed the amount actually due under the Contract or if recovery is

justified in accordance with the terms of the Contract, the Contractor shall reimburse the appropriate amount in euro on receipt of the debit note, in the manner and within the time limits set by the Commission.

II.6.2. In the event of failure to pay by the deadline specified in the request for reimbursement, the sum due shall bear interest at the rate indicated in Article II.5.3. Interest shall be payable from the calendar day following the due date up to the calendar day on which the debt is repaid in full.

II.6.3. The Commission may, after informing the Contractor, recover amounts established as

certain, of a fixed amount and due by offsetting, in cases where the Contractor also has a claim on the Communities that is certain, of a fixed amount and due. The Commission may also claim against the guarantee, where provided for.

ARTICLE II.7 - REIMBURSEMENTS II.7.1. Where provided by the Special Conditions or by Annex I, the Commission shall reimburse

the expenses which are directly connected with execution of the tasks on production of original supporting documents, including receipts and used tickets.

II.7.2. Travel and subsistence expenses shall be reimbursed, where appropriate, on the basis of the

shortest itinerary. II.7.3. Travel expenses shall be reimbursed as follows:

a) travel by air shall be reimbursed up to the maximum cost of an economy class ticket at the time of the reservation;

b) travel by boat or rail shall be reimbursed up to the maximum cost of a first class ticket; c) travel by car shall be reimbursed at the rate of one first class rail ticket for the same

journey and on the same day;

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d) travel outside Community territory shall be reimbursed under the general conditions stated above provided the Commission has given its prior written agreement.

II.7.4. Subsistence expenses shall be reimbursed on the basis of a daily allowance as follows:

a) for journeys of less than 200 km (return trip) no subsistence allowance shall be payable; b) daily subsistence allowance shall be payable only on receipt of a supporting document

proving that the person concerned was present at the place of destination; c) daily subsistence allowance shall take the form of a flat-rate payment to cover all

subsistence expenses, including accommodation, meals, local transport, insurance and sundries;

d) daily subsistence allowance, where applicable, shall be reimbursed at the rate specified in

Article I.3.3. II.7.5. The cost of shipment of equipment or unaccompanied luggage shall be reimbursed provided

the Commission has given prior written authorisation. ARTICLE II.8 – OWNERSHIP OF THE RESULTS - INTELLECTUAL AND INDUSTRIAL PROPERTY Any results or rights thereon, including copyright and other intellectual or industrial property rights, obtained in performance of the Contract, shall be owned solely by the Community, which may use, publish, assign or transfer them as it sees fit, without geographical or other limitation, except where industrial or intellectual property rights exist prior to the Contract being entered into. ARTICLE II.9 – CONFIDENTIALITY II.9.1. The Contractor undertakes to treat in the strictest confidence and not make use of or divulge

to third parties any information or documents which are linked to performance of the Contract. The Contractor shall continue to be bound by this undertaking after completion of the tasks.

II.9.2. The Contractor shall obtain from each member of his staff, board and directors an

undertaking that they will respect the confidentiality of any information which is linked, directly or indirectly, to execution of the tasks and that they will not divulge to third parties or use for their own benefit or that of any third party any document or information not available publicly, even after completion of the tasks.

ARTICLE II.10 - USE, DISTRIBUTION AND PUBLICATION OF INFORMATION II.10.1. The Contractor shall authorise the Commission to process, use, distribute and publish, for

whatever purpose, by whatever means and on whatever medium, any data contained in or relating to the Contract, in particular the identity of the Contractor, the subject matter, the duration, the amount paid and the reports. Where personal data is concerned, Article I.8 shall apply.

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II.10.2. Unless otherwise provided by the Special Conditions, the Commission shall not be required to distribute or publish documents or information supplied in performance of the Contract. If it decides not to publish the documents or information supplied, the Contractor may not have them distributed or published elsewhere without prior written authorisation from the Commission.

II.10.3. Any distribution or publication of information relating to the Contract by the Contractor

shall require prior written authorisation from the Commission and shall mention the amount paid by the Community. It shall state that the opinions expressed are those of the Contractor only and do not represent the Commission's official position.

II.10.4. The use of information obtained by the Contractor in the course of the Contract for

purposes other than its performance shall be forbidden, unless the Commission has specifically given prior written authorisation to the contrary.

ARTICLE II. 11 – TAXATION II.11.1. The Contractor shall have sole responsibility for compliance with the tax laws which apply

to him. Failure to comply shall make the relevant invoices invalid. II.11.2. The Contractor recognises that the Commission is, as a rule, exempt from all taxes and

duties, including value added tax (VAT), pursuant to the provisions of Articles 3 and 4 of the Protocol on the Privileges and Immunities of the European Communities.

II.11.3. The Contractor shall accordingly complete the necessary formalities with the relevant

authorities to ensure that the goods and services required for performance of the Contract are exempt from taxes and duties, including VAT.

II.11.4. Invoices presented by the Contractor shall indicate his place of taxation for VAT purposes

and shall specify separately the amounts not including VAT and the amounts including VAT.

ARTICLE II.12 – FORCE MAJEURE II.12.1. Force majeure shall mean any unforeseeable and exceptional situation or event beyond the

control of the contracting parties which prevents either of them from performing any of their obligations under the Contract, was not due to error or negligence on their part or on the part of a subcontractor, and could not have been avoided by the exercise of due diligence. Defects in equipment or material or delays in making it available, labour disputes, strikes or financial problems cannot be invoked as force majeure unless they stem directly from a relevant case of force majeure.

II.12.2. Without prejudice to the provisions of Article II.1.8, if either contracting party is faced

with force majeure, it shall notify the other party without delay by registered letter with acknowledgment of receipt or equivalent, stating the nature, likely duration and foreseeable effects.

II.12.3. Neither contracting party shall be held in breach of its contractual obligations if it has been

prevented from performing them by force majeure. Where the Contractor is unable to

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perform his contractual obligations owing to force majeure, he shall have the right to remuneration only for tasks actually executed.

II.12.4. The contracting parties shall take the necessary measures to reduce damage to a minimum. ARTICLE II.13 – SUBCONTRACTING II.13.1. The Contractor shall not subcontract without prior written authorisation from the

Commission nor cause the Contract to be performed in fact by third parties. II.13.2. Even where the Commission authorises the Contractor to subcontract to third parties, he

shall none the less remain bound by his obligations to the Commission under the Contract and shall bear exclusive liability for proper performance of the Contract.

II.13.3. The Contractor shall make sure that the subcontract does not affect rights and guarantees to

which the Commission is entitled by virtue of the Contract, notably Article II.17. ARTICLE II.14 – ASSIGNMENT II.14.1. The Contractor shall not assign the rights and obligations arising from the Contract, in

whole or in part, without prior written authorisation from the Commission. II.14.2. In the absence of the authorisation referred to in 1 above, or in the event of failure to

observe the terms thereof, assignment by the Contractor shall not be enforceable against and shall have no effect on the Commission.

ARTICLE II.15 – TERMINATION BY THE COMMISSION II.15.1. The Commission may terminate the Contract in the following circumstances: (a) where the Contractor is being wound up, is having his affairs administered by the courts, has

entered into an arrangement with creditors, has suspended business activities, is the subject of proceedings concerning those matters, or is in any analogous situation arising from a similar procedure provided for in national legislation or regulations;

(b) where the Contractor has not fulfilled obligations relating to the payment of social security

contributions or the payment of taxes in accordance with the legal provisions of the country in which he is established or with those of the country applicable to the Contract or those of the country where the Contract is to be performed;

(c) where the Commission has evidence or seriously suspects the Contractor or any related

entity or person, of professional misconduct; (d) where the Commission has evidence or seriously suspects the Contractor or any related

entity or person, of fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the Communities' financial interests;

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(e) where the Commission has evidence or seriously suspects the Contractor or any related entity or person, of substantial errors, irregularities or fraud in the award procedure or the performance of the Contract;

(f) where the Contractor is in breach of his obligations under Article II.3; (g) where the Contractor was guilty of misrepresentation in supplying the information required

by the Commission as a condition of participation in the Contract procedure or failed to supply this information;

(h) where a change in the Contractor’s legal, financial, technical or organisational situation

could, in the Commission’s opinion, have a significant effect on the performance of the Contract;

(i) where execution of the tasks has not actually commenced within three months of the date

foreseen, and the new date proposed, if any, is considered unacceptable by the Commission; (j) where the Contractor is unable, through his own fault, to obtain any permit or licence

required for performance of the Contract; (k) where the Contractor, after receiving formal notice in writing to comply, specifying the

nature of the alleged failure, and after being given the opportunity to remedy the failure within a reasonable period following receipt of the formal notice, remains in serious breach of his contractual obligations.

II.15.2. In case of force majeure, notified in accordance with Article II.12, either contracting party

may terminate the Contract, where performance thereof cannot be ensured for a period corresponding to at least to one fifth of the period laid down in Article I.2.3.

II.15.3. Prior to termination under point c), d), e), h) or k), the Contractor shall be given the

opportunity to submit his observations.

Termination shall take effect on the date on which a registered letter with acknowledgment of receipt terminating the Contract is received by the Contractor, or on any other date indicated in the letter of termination.

II.15.4. Consequences of termination: In the event of the Commission terminating the Contract in accordance with this Article and without prejudice to any other measures provided for in the Contract, the Contractor shall waive any claim for consequential damages, including any loss of anticipated profits for uncompleted work. On receipt of the letter terminating the Contract, the Contractor shall take all appropriate measures to minimise costs, prevent damage, and cancel or reduce his commitments. He shall draw up the documents required by the Special Conditions for the tasks executed up to the date on which termination takes effect, within a period not exceeding sixty days from that date. The Commission may claim compensation for any damage suffered and recover any sums paid to the Contractor under the Contract. On termination the Commission may engage any other contractor to complete the services. The Commission shall be entitled to claim from the Contractor all extra costs incurred in

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making good and completing the services, without prejudice to any other rights or guarantees it has under the Contract.

ARTICLE II.15a – SUBSTANTIAL ERRORS, IRREGULARITIES AND FRAUD ATTRIBUTABLE TO THE CONTRACTOR Where, after the award of the Contract, the award procedure or the performance of the Contract prove to have been subject to substantial errors, irregularities or fraud, and where such errors, irregularities or fraud are attributable to the Contractor, the Commission may refuse to make payments, may recover amounts already paid or may terminate all the contracts concluded with the Contractor, in proportion to the seriousness of the errors, irregularities of fraud.

ARTICLE II.16 – LIQUIDATED DAMAGES Should the Contractor fail to perform his obligations under the Contract within the time limits set by the Contract, then, without prejudice to the Contractor's actual or potential liability incurred in relation to the Contract or to the Commission's right to terminate the Contract, the Commission may decide to impose liquidated damages of 0.2% of the amount specified in Article I.3.1 per calendar day of delay. The Contractor may submit arguments against this decision within thirty days of notification by registered letter with acknowledgement of receipt or equivalent. In the absence of reaction on his part or of written withdrawal by the Commission within thirty days of the receipt of such arguments, the decision imposing the liquidated damages shall become enforceable. These liquidated damages shall not be imposed where there is provision for interest for late completion. The Commission and the Contractor expressly acknowledge and agree that any sums payable under this Article are in the nature of liquidated damages and not penalties, and represent a reasonable estimate of fair compensation for the losses that may be reasonably anticipated from such failure to perform obligations. ARTICLE II.17 – CHECKS AND AUDITS II.17.1. Pursuant to Article 142 of the Financial Regulation applicable to the general budget of the

European Communities, the European Court of Auditors shall be empowered to audit the documents held by the natural or legal persons receiving payments from the budget of the European Communities from signature of the Contract up to five years after payment of the balance.

II.17.2. The Commission or an outside body of its choice shall have the same rights as the

European Court of Auditors for the purpose of checks and audits limited to compliance with contractual obligations from signature of the Contract up to five years after payment of the balance.

II.17.3. In addition, the European Anti Fraud Office may carry out on-the-spot checks and

inspections in accordance with Council Regulation (Euratom, EC) No 2185/96 and Parliament and Council Regulation (EC) No 1073/1999 from signature of the Contract up to five years after payment of the balance.

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ARTICLE II.18 – AMENDMENTS Any amendment to the Contract shall be the subject of a written agreement concluded by the contracting parties. An oral agreement shall not be binding on the contracting parties. ARTICLE II.19 – SUSPENSION OF THE CONTRACT Without prejudice to the Commission's right to terminate the Contract, the Commission may at any time and for any reason suspend execution of the tasks under the Contract or any part thereof. Suspension shall take effect on the day the Contractor receives notification by registered letter with acknowledgment of receipt or equivalent, or at a later date where the notification so provides. The Commission may at any time following suspension give notice to the Contractor to resume the work suspended. The Contractor shall not be entitled to claim compensation on account of suspension of the Contract or of part thereof. SIGNATURES For the Contractor, [Company name/forename/surname/function] signature[s]: _______________________

For the Commission, [forename/surname/function] signature[s]:_____________________

Done at [Brussels], [date] Done at [Brussels], [date] In duplicate in English.

CALL FOR TENDER NO HOME/2010/ISEC/PR/038-A1...6. Lot 5: Study on the implementation of the IAEA...

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