Terms of Reference of the ESA Industrial Ombudsman - emits - ESA

Terms of Reference of the ESA Industrial OmbudsmanThe extent of the activities carried out by the office of the ESA IndustrialOmbudsman during the last term of office does not warrant this role henceforth beingcarried out by two full-time Ombudsmen.Consequently, ESA will appoint an official Industrial Ombudsman and alternate, withthe latter only performing that role on a case-by-case basis when the officialOmbudsman is unable to perform his/her duties. In such latter case, the officialOmbudsman shall inform the Agency of the claims he/she has delegated to his/heralternate and the alternate shall also inform the Agency should he/she be directlycontacted by a claimant.1 GeneralThese terms of Reference apply equally to both the official Ombudsman and his/heralternate. They shall be selected pursuant to the procedure defined in Annex 1 to theseTerms of Reference.In accordance with Article 52.1 of ESA Procurement Regulations (ESA/REG/001)they are appointed for a period of 3 years renewable once (for a further three-yearextension).The period of service of the incoming Ombudsman and his/her alternate shall overlapby at least a few months with that period of the Ombudsmen they are replacing.In accordance with Article 52.1 of the ESA Procurement Regulations(ESA/REG/001), they may only be relieved of office by Council either at its ownrequest or at the request of the Director General and only for misbehaviour andincapacity.They are independent in the performance of their function and shall not seek or acceptinstructions from anyone whatsoever.In the exercise of their function, they shall enjoy the privileges and immunitiesprovided for in Article XVII of Annex I to the Convention.The official Ombudsman or his/her alternate are hereinafter referred to as “theOmbudsman”.2 Areas of competenceThe Ombudsmen are competent for:2.1 Facilitating the resolution of disputes between industry and ESA on potentialprocedural breach of the Agency’s Procurement Regulations in the pre-contractual

phase in accordance with Part VI of ESA Procurement Regulations(ESA/REG/001).2.2 Facilitating the resolution of disputes among industry during procurements in theframe of “Best Practices”;2.3 Facilitating communications between bidders, potential bidders and betweencontractors and bidders in the resolution of matters arising in the frame of anAgency procurement; and2.4 Participating as a member in Dispute Adjudication Boards for amicable resolutionof disputes between the Agency and the Contractor. During this phase, he isfurther competent to facilitate communications between contractors.In addition, the Ombusmen shall upon request by the Executive, give ad-hocconsultation to ESA on industrial issues and issues of revision and modification ofrules and procedures applicable to procurement matters.The Ombusmen shall be invited by the Executive to assist to the meetings of theIndustrial Policy Committee.3 Exclusion of competenceThe Ombudsman is not competent for investigating complaints based on questions ofthe industrial return and geographical distribution. He/she shall not participate in theevaluation of proposals or source selection process.4 Investigations4.1 GeneralAll investigations shall be carried out in the strictest confidentiality. When conductingan investigation the Ombudsman may call for and collect all relevant facts to resolveor advise on the issues raised by the parties.To that effect, the Ombudsman:• Will maintain strict confidentiality as to the source of the concern• Will be granted access to the documents and proprietary information, thecollection of which will be co-ordinated through the designated ESA supportstaff, and• Will be granted access to all technical specifications and requirements eitherestablished by the Agency or by the company carrying out the procurementaccording to the ‘Best Practices’ in the frame of the Agency’s programme.4.2 In the frame of ‘Best Practices’The Ombudsman can only investigate a procurement process which has taken place inthe frame of ‘Best Practices’ where a complaint has been made to him/her 1 and1 Any company requesting the intervention of the Ombudsman shall in parallel notify the Head ofESA’s Procurement Department.

where, after having carried out a preliminary examination of the matter, it appears tothe Ombudsman that the procurement process was or may have been:• not carried out in conformity with the procurement instructions and/or rulesestablished by the Agency either in general or for the specific purposes of theprocurement under investigation,• improperly discriminatory,• based on an undesirable procurement practice, or• otherwise contrary to fair and sound procurement practices4.3 In the frame of the Procurement Review ProcedureThe Ombudsman shall investigate cases of alleged procedural breach of the ESAProcurement Regulations brought in front of him. Such investigations shall beconducted in accordance with the procedure laid down in Article 53 of ESAProcurement Regulations (ESA/REG/001). In this context, he will be granted accessto ESA internal papers and related documentation including the proceedings of theTender Evaluation Boards.4.4 In the frame of Contractual Matters between industryDuring execution of Contracts the Ombudsman shall investigate disputes, in order tosupport communication between the parties, if such request has been made to him byat least one of the disputing parties. Should the issue be subject of scrutiny by theDispute Adjudication Board (DAB), the investigation will be performed by the DABin accordance with the terms of this Board.5. Support by ESAIn accordance with Article 52.6 of the ESA Procurement Regulations(ESA/REG/001), for operational matters, a senior officer of the Agency’sProcurement Department and a senior Technical Officer designated by the DirectorGeneral shall support the Ombudsman in his/her investigations as so required.The senior officer from the Procurement Department shall be the Ombudsman’sgeneral point of contact within the Executive.6. Findings and Reports6.1 In the frame of ‘Best Practices’When the Ombudsman carries out an investigation, he/she must inform thecomplainant company and the company complained against of the result of theinvestigation and of his/her recommendation. When it appears to the Ombudsman thatthe response to a recommendation which he/she has made to a company is notsatisfactory, he/she shall make a special report on the matter.Although not to receive complaints concerning disputes between the Agency andIndustry for these matters, should the finding s of the Ombudsman conclude that the

situation was caused by actions or omissions of the Agency, he/she shall first reportthe matter to the Head of the ESA’s Procurement Department.6.2 Pre-contractual mattersThe findings of the Ombudsman shall be issued in the form required under Article53.3 of ESA Procurement Regulations (ESA/REG/001).6.3 Annual ReportThe official Ombudsman shall publish an Annual report summarising his/heractivities and cases dealt with together with general conclusions andrecommendations resulting from his/her involvement under each category ofcompetence. This report will be presented to the Industrial Policy Committee.

Annex 1Method for the selection of the ESA Industrial Ombusdman and his/heralternate1 Required skills and ExperienceThe official Ombusman and his/her alternate will be eminent persons with particularexperience and competence in matters pertaining to the European space industry andprocurement.2 ExclusionsIn accordance with Article 52.5 of the ESA Procurement Regulations (ESA/REG/001)applications from staff members of the Agency, members of delegations of MemberStates, Associated States or Cooperating States shall not be considered for selection.3 Publication of the opportunityAn Announcement of Opportunity for the positions of ESA official Ombudsman andalternate will be published on the ESA Portal and in other appropriate communicationchannels.4 Pre-Selection and Interview BoardThe pre-selection of applicants for the posts of official Ombudsman and alternate willbe made by a Board comprising two representatives of the ESA Executive (theDirector for Procurement, Financial Operations and Legal Affairs and the Head of theProcurement Department), the IPC Chair, the IPC Deputy Chair and tworepresentatives of industry (one from Eurospace and one from an SME association).The Board will be chaired by the IPC Chair. Pre-selected candidates will be invitedfor an interview. As a result of each interview, a report will be drawn up containingthe findings of the Board and the recommendation made. The interview reports, whichwill be confidential and kept in the Agency, have to be signed by all members of theBoard and forwarded to the ESA Director General.5 Appointment by CouncilBased on the recommendations of the Interview Board, the Director General inaccordance with Article 52.1 of the ESA Procurement Regulations (ESA/REG/001)shall submit a proposal to Council concerning appointments to be made to the posts ofofficial Ombudsman and alternate.