210215_OP_33_2019_FWC (part 1)
~ FRONTEXm EUROP EAN BO RDER /\N D CO A ST C.U A RD AG EN CY FRAMEWORK SERVICE CONTRACT FRAMEWORK CONTRACT NUMBER - Frontex/OP/33/2019/RS European Border and Coast Guard Agency, hereinafter referred to as 'Frontex', represented for the purposes of the signature of this specific contract the Authorising Officer, on the one part, and Lazaris A. Gomos D. OE P. Kountourioti 87 81100 Mitilini. Greece ) VAT no: 997816823 (hereinafter referred to as "the Contractor"), represented for the purposes of the signature of this specific contract b on the other part, HAVE AGREED to the specia l conditions, the general conditions for service framework contracts, the model request for services and the following annexes: Annex I - Terms of Reference No OP/33/2019/RS Annex II - Contractor's tender of 4 April 2019 Annex Ill - Templates of the Specific Order / which form an integral part of this framework contract (hereinafter referred to as "the FWC"). I - SPECIAL CONDITIONS Article I. 1 - Order of priority of provisions If there is any conflict between different provisions in this FWC, the following rules must be applied: The terms set out in the special conditions shall take precedence over those in the other parts of the FWC. The terms set out in the general conditions shall take precedence over those in the templates of the Specific Order. The terms set out in the templates of the Specific Order shall take precedence over those in the other annexes. The terms set out in the Terms of Reference (Annex I) shall take precedence over those in the Contractor's tender (Annex II). The terms set out in the framework contract shall take precedence over those in the templates of the Specific Order. wt:
the procedure by which Frontex may order services from the contractor; the provisions that apply to any order which Frontex and the contractor may conclude under this FWC; and the obligations of the parties during and after the duration of this FWC. All documents issued by the Contractor (end-user agreements, general terms and conditions, etc.) except its tender are held inapplicable, unless explicitly mentioned in the special conditions of this FWC. In all circumstances, in the event of contradiction between this FWC and documents issued by the Contractor, this FWC prevails, regardless of any provision to the contrary in the Contractor's documents. Article I. 2 - Subject matter I. 2. 1 The subject matter of the FWC is the provision of Frontex with transfer services by sea for passengers. Details are provided in the Terms of Reference (Annex//). 1.2.2 Signature of the FWC imposes no obligation on Frontex to purchase. Only performance of the FWC through Request for Services is binding on Frontex. 1.1.3 The Contractor is selected for a single FWC. Article I. 3 - Entry into force and duration 1.3.1 The FWC shall enter into force on the date on which it is signed by the last party. 1.3.2 The implementation of the FWC cannot start before its entry into force. 1.3.3 The FWC is concluded for a period of 12 months with effect from the date on which it enters into force. 1.3.4 The parties must sign an Order form before the FWC expires. The FWC shall continue to apply to such Order forms after its expiry. The services relating to such Order forms must be performed no later than six months after the expiry of the FWC. 1.3.5 FWC renewal The FWC is renewed automatically for another 12 months, unless one of the parties receives formal notification to the contrary at least three months before the end of the ongoing duration. The maximum total duration is two years. Renewal does not change or postpone any existing obligations. Article 1.4 - Appointment of the Contractor and implementation of the FWC 1.4. 1 Appointment of the Contractor Frontex appoints the Contractor for a single FWC. 1.4.2 Period of provision of the services The period allowed for the execution of the tasks shall start to run on the date the Contractor signs the Specific Order form, unless a different date is indicated on the Specific Order form. Frontex - European Border and Coast Guard Agency www.frontex.europa.eu I Pl. Europejski 6, 00-844 Warsaw, Poland I Tel. +48 22 205 95 00 I Fax +48 22 205 95 01
1.4.3 Implementation of single FWC The contracting authority orders services by sending the Contractor an Order form. The contractor must send back the counter-signed and dated Specific Order back to Frontex within one working day of receipt. If the contractor repeatedly refuses to sign the Specific Order forms or repeatedly fails to send them back on time, the Contractor may be considered in breach of its obligations under this FWC as set out in Article 11. 18. 1 (c). Article I. 5 -Prices I. 5.1 The maximum indicative budget under this FWC is 820,000 EUR for 1 year, or 1,640 000 EUR over a period of 2 years. However, this does not bind Frontex to purchase for the maximum amount. I. 5. 2 Price revision is not applicable to this FWC. 1.5.3 Reimbursement of expenses is not applicable to this FWC. ) I. 5.4 Frontex reserves the right to conduct an exceptional negotiated procedure in accordance with Article 11.1. (e) of the Annex I to the Regulation (EU, Euratom) 2018/ 1046 on the financial rules applicable to the general budget of the Union (Financial Regulation), repealing Regulation (EU, Euratom) No 966/2012 and Commission Delegated Regulation (EU) No 1268/2012, in order to increase the ceiling of the contract up to 50%, if such a need occurs and the requirements of law are satisfied. Article 1.6 - Payment arrangements 1.6.1 Pre-financing Pre-financing payment is not applicable to this FWC. 1.6.2 Interim payment Interim payment is not applicable to this FWC. ) 1.6.3 Payments under Specific Orders The contractor (or leader in case of a joint tender) may claim the payment after successful implementation of each Specific Order. The Contractor (or leader in case of a joint tender) must send an invoice for payment of the amount due under the Specific Order and shall indicate the Frontex· number of the Purchase Order including the FRO ... number. The invoice must be sent in pdf format to the following address: invoices@frontex.europa.eu. The invoice shall be accompanied by: - Ship Visit Report Form signed by both parties, Frontex must accept deliverables and pay within 30 days from receipt of the invoice. If Frontex has observations to make, it must send them to the Contractor (or leader in the case of a joint tender) and suspend the time limit for payment in accordance with Article 11.21.7. The Contractor (or leader in the case of a joint tender) has 15 calendar days to submit additional information or corrections if Frontex requires it. Frontex must give its approval and pay within the remainder of the time-limit indicated above, unless it rejects partially or fully the submitted documents or deliverables. Frontex - European Border and Coast Guard Agency www.frontex.europa.eu I Pl. Europejski 6, 00-844 Warsaw, Poland I Tel. +48 22 205 95 00 I Fax +48 22 205 95 01
1.6.4 Performance guarantee Performance guarantee is not applicable to this FWC. 1.6.5 Retention money guarantee Retention money guarantee is not applicable to this FWC. Article I. 7 - Bank account Payments must be made to the Contractor's (or leader's in case of a joint tender) bank account denominated in euro, identified as follows: Name of bank: Full address of branch: Exact denomination of account holder: Full account number including bank codes: Amendment of the bank account by the Contractor requires proper notification to Frontex signed by the person authorised to conclude the Contract and sent in line with art. 1.8. Article 1.8 - Communication details For the purpose of this FWC, communications must be sent to the following addresses: Contracting authority: Frontex, Plac Europejski 6, 00-844 Warsaw, Poland Email: Contractor (or leader in case of a joint tender): Lazaris A. Gomos D. OE P. Kountourioti 87 81100 Mitilini. Greece Email: By derogation from this Article, different contact details for Frontex or the Contractor may be provided in Order forms. Article I. 9 - Processing of personal data Processing of personal data by the contracting authority Frontex - European Border and Coast Guard Agency www.frontex.europa.eu I Pl. Europejski 6, 00-844 Warsaw, Poland I Tel. +48 22 205 95 00 I Fax +48 22 205 95 01
For the purpose of Article 11. 9. Z, (a) the data controller is Frontex PRU Unit; (b) the data protection notice is available at https: / /ec .europa.eu/info/data-protection -public - procurement-procedures en. 1.9.2 Processing of personal data by the Contractor For the purpose of Article II. 9.Z, (a) the subject matter and purpose of the processing of personal data by the Contractor is related to the purchasing of vehicles with trailers needed within Frontex operational activities. (b) The localisation of and access to the personal data processed by the Contractor shall comply with the following: i. the personal data shall only be processed within the territory of the European Union and the European Economic Area and will not leave that territory; ii. the data shall only be held in data centres located with the territory of the European Union and the European Economic Area; iii. no access shall be given to such data outside of the European Union and the European Economic Area; access to data may be given on a need to know basis only to authorised persons established in a country which has been recognised by the European Commission as providing adequate protection to personal data; iv. the Contractor may not change the location of data processing without the prior written authorisation of the contracting authority; v. any transfer of personal data under the FWC to third countries or international organisations shall fully comply with the requirements laid down in Chapter V of Regulation (EU)Z018/ 1725 1 • Article 1. 10 - Exploitation of the results of the FWC 1.10.1 Detailed list of modes of exploitation of the results In accordance with Article 11.13.1 whereby Frontex acquires ownership of the results as defined in this FWC, including the tender specifications, these results may be used for any of the following modes of exploitation: (a) use for its own purposes: • making available to the staff of Frontex; • making available to the persons and entities working for Frontex or cooperating with it, including contractors, subcontractors whether legal or natural persons, Union institutions, agencies and bodies, Member States' institutions; • installing, uploading, processing; • arranging, compiling, combining, retrieving; • copying, reproducing in whole or in part and in unlimited number of copies.] (f) rights to authorise, license, or sub-license in case of licensed pre-existing rights, the modes of exploitation set out in any of the points (a) to (e) to third parties., _., , , f (g) other adaptations which the parties may later agree; in such case, the following rules apply: Frontex must consult the Contractor. If necessary, the Contractor must in turn seek the agreement of any creator or other right holder and must reply to Frontex within one month by providing its agreement, including any suggestions ' Regulation (EU) 2018/ 1725 of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 4512001 and Decision No 1247/2002/EC, OJ L 295/39, 21.11.2018 , https:l/eur-lex .europa.eullegal-content/ENITXTIPDFl?url=CELEX:32018Rt725&.from=EN Frontex - European Border and Coast Guard Agency www.frontex.europa.eu I Pl. Europejski 6, 00-844 Warsaw, Poland I Tel. +48 22 205 95 00 I Fax +48 22 205 95 01
of modifications, free of charge. The Contractor may refuse the intended modification only if a creator can demonstrate that the intended modification may harm his/her honour or reputation , thereby violating his/her moral rights. The modes of exploitation may be defined in more details in the Order form. 1.10.2 Licence or transfer of pre-existing rights All pre-existing rights incorporated in the results, if any, are licensed to Frontex as set out in Article 11.13.2. 1.10.3 Provision of list of pre-existing rights and documentary evidence The Contractor must provide Frontex with a list of pre-existing rights as set out in Article 11.13.4 together with the invoice for payment of the balance at the latest. In addition, the contractor must provide Frontex with relevant and exhaustive evidence of the acquisition of all the necessary pre-existing rights together with a presentation of relevant result. To this effect, the contractor must provide the relevant evidence listed in Article 11.13.5 as appropriate or, failing that, third parties' statement. Article I. 11 - Termination by either party Either party may terminate the FWC and/or the FWC and Specific Order by sending formal notification to the other party with two months written notice. If the FWC or a Specific Order form is terminated: (a) neither party is entitled to compensation; (b) the Contractor is entitled to payment only for the services provided before termination takes effect. Article 1. 12 - Applicable law and settlement of disputes 1.12.1 The FWC is governed by Union law, complemented , where necessary, by the law of Poland. 1.12. 2 The courts of Poland relevant for Frontex seat have exclusive jurisdiction over any dispute regarding the interpretation, application or validity of the FWC. SIGNATURES For the Contractor, · For Frontex, Authorising Offic<>r signature: _' signature: _· oc'll't/df~ Done at ,j/.'/y,, on , / J.,{,/.i,v~I ' Done at W aw, or, 1-9 \ .(o \ '2,D) °) In duplicate in English. Frontex - European Border and Coast Guard Agency www.frontex.europa.eu I Pl. Europejski 6, 00-844 Warsaw, Poland I Tel. +48 22 205 95 00 I Fax +48 22 205 95 01
II. 11 - GENERAL CONDITIONS FOR THE FRAMEWORK CONTRACT FOR SERVICES 11.1. Definitions For the purpose of this FWC, the following definitions (indicated in italics in the text) apply: 'Back office': the internal system(s) used by the parties to process electronic invoices; 'Breach of obligations': failure by the contractor to fulfil one or more of its contractual obligations. 'Confidential information or document': any information or document received by either party from the other or accessed by either party in the context of the implementation of the FWC, that any of the parties has identified in writing as confidential. It may not include information that is publicly available; 'Conflict of interest': a situation where the impartial and objective implementation of the FWC by the contractor is compromised for reasons involving family, emotional life, political or national affinity, economic interest, any other direct or indirect personal interest, or any other shared interest with the contracting authority or any third party related to the subject matter of the FWC; 'Creator': means any natural person who contributes to the production of the result; 'EDI message' (electronic data interchange): a message created and exchanged through the electronic transfer, from computer to computer, of commercial and administrative data using an agreed standard; 'e-PRIOR': the service-oriented communication platform that provides a series of web services and allows the exchange of standardised electronic messages and documents between the parties. This is done either through web services, with a machine-to-machine connection between the parties' back office systems (ED/ messages), or through a web application (the supplier portal). The Platform may be used to exchange electronic documents (e-documents) such as electronic requests for services, electronic specific contracts, electronic acceptance of services and electronic invoices between the parties. 'Force majeure': any unforeseeable, exceptional situation or event beyond the control of the parties that prevents either of them from fulfilling any of their obligations under the FWC. The situation or event must not be attributable to error or negligence on the part of the parties or on the part of the subcontractors and must prove to be inevitable despite their exercising due diligence. Defaults of service, defects in equipment or material or delays in making them available, labour disputes, strikes and financial difficulties may not be invoked as force majeure, unless they stem directly from a relevant case of force majeure; 'Formal notification' (or 'formally notify'): form of communication between the parties made in writing by mail or email, which provides the sender with compelling evidence that the message was delivered to the specified recipient; 'Fraud': an act or omission committed in order to make an unlawful gain for the perpetrator or another by causing a loss to the Union's financial interests, and relating to: i) the use or presentation of false, incorrect or · incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds or assets from the Union budget, ii) the non -disclosure of information in violation of a specific obligation, with the same effect or iii) the misapplication of such funds or assets for purposes other than those for which they were originally granted, which damages the Union's financial interests; 'Grave professional misconduct': a violation of applicable laws or regulations or ethical standards of the profession to which a contractor or a related person belongs, including any conduct leading to sexual or other exploitation or abuse, or any wrongful conduct of the contractor or a related person which has an impact on its professional credibility where such conduct denotes wrongful intent or gross negligence. Frontex - European Border and Coast Guard Agency www.frontex.europa.eu I Pl. Europejski 6, 00-844 Warsaw, Poland I Tel. +48 22 205 95 00 I Fax +48 22 205 95 01
'Implementation of the FWC': the purchase of services envisaged in the FWC through the signature and performance of specific contracts; 'Interface control document': the guideline document which lays down the technical specifications, message standards, security standards, checks of syntax and semantics, etc. to facilitate machine-to-machine connection. This document is updated on a regular basis; 'Irregularity': any infringement of a provision of Union law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the Union's budget. 'Notification' (or 'notify'): form of communication between the parties made in writing including by electronic means; 'Order form': a simplified form of specific contract by which the contracting authority orders services under this FWC; 'Performance of a specific contract': the execution of tasks and delivery of the purchased services by the contractor to the contracting authority; 'Personnel': persons employed directly or indirectly or contracted by the contractor to implement the FWC; 'Pre-existing material': any material, document, technology or know-how which exists prior to the contractor using it for the production of a result in the implementation of the FWC; 'Pre-existing right': any industrial and intellectual property right on pre-existing material; it may consist in a right of ownership, a licence right and/or right of use belonging to the contractor, the creator, the contracting authority as well as to any other third parties; 'Professional conflicting interest': a situation in which the contractor's previous or ongoing professional activities affect its capacity to implement the FWC or to perform a specific contract to an appropriate quality standard. 'Related person': any natural or legal person who is a member of the administrative, management or supervisory body of the contractor, or who has powers of representation, decision or control with regard to the contractor; 'Request for services': a document from the contracting authority requesting that the contractors in a multiple FWC with re-opening of competition provide a specific tender for services whose terms are not entirely defined under the FWC; 'Result': any intended outcome of the implementation of the FWC, whatever its form or nature. A result may be further defined in this FWC as a deliverable. A result may, in addition to newly created materials produced specifically for the contracting authority by the contractor or at its request, also include pre-existing materials; 'Specific contract': a contract implementing the FWC and specifying details of a service to be provided; 'Supplier portal': thee-PRIOR portal, which allows the contractor to exchange electronic business documents, such as invoices, through a graphical user interface. 11.2. Roles and responsibilities in the event of a joint tender In the event of a joint tender submitted by a group of economic operators and where the group does not have legal personality or legal capacity, one member of the group is appointed as leader of the group. Frontex - European Border and Coast Guard Agency www.frontex.europa.eu I Pl. Europejski 6, 00-844 Warsaw, Poland I Tel. +48 22 205 95 00 I Fax +48 22 205 95 01
11 .3. Severability Each provision of this FWC is severable and distinct from the others. If a provision is or becomes illegal, invalid or unenforceable to any extent, it must be severed from the remainder of the FWC. This does not affect the legality, validity or enforceability of any other provisions of the FWC, which continue in full force and effect. The illegal, invalid or unenforceable provision must be replaced by a legal, valid and enforceable substitute provision which corresponds as closely as possible with the actual intent of the parties under the illegal, invalid or unenforceable provision. The replacement of such a provision must be made in accordance with Article 11.11 . The FWC must be interpreted as if it had contained the substitute provision as from its entry into force. 11.4. Provision of services 11.4. 1 Signature of the FWC does not guarantee any actual purchase. The contracting authority is bound only by specific contracts implementing the FWC. 11.4. 2 The contractor must provide services of high quality standards, in accordance with the state of the art in the industry and the provisions of this FWC, in particular the tender specifications and the terms of its tender. Where the Union has the right to make modifications to the results, they must be delivered in a format and with the necessary information which effectively allow such modifications to be made in a convenient manner. 11.4. 3 The contractor must comply with the minimum requirements provided for in the tender specifications. This includes compliance with applicable obligations under environmental, social and labour law established by Union law, national law and collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU 2 , compliance with data 3 protection obligations resulting from Regulation (EU) 2016/679 and Regulation (EU) 2018/1725 • 4 11.4.4 The contractor must obtain any permit or licence required in the State where the services are to be provided . 11.4.5 All periods specified in the FWC are calculated in calendar days, unless otherwise specified . 11.4.6 The contractor must not present itself as a representative of the contracting authority and must inform third parties that it is not part of the European public service. 11.4. 7 The contractor is responsible for the personnel who carry out the services and exercises its authority over its personnel without interference by the contracting authority. The contractor must inform its personnel that: (a) they may not accept any direct instructions from the contracting authority; and (b) their participation in providing the services does not result in any employment or contractual relationship with the contracting authority. OJ L 94 of 28.03 .2014 , p. 65 Regulation (EU) 2016/679 of the European Parliament and of the Cauncit of 27 April 2016 on the protect/on of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119, 4.5.2016, p. 1, https: / leur -lex .europa.eu/legal-content!EN/TXTI ?url=uriserv:OJ.L .2016. 119.01 .0001 .01 .ENG 4 Regulation (EU) 2018/ 1725 of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/ 2001 and Decision No 1247/2002/EC, OJ L 295/39, 21 . 11.2018, tJllR.s:lleur -lex.europa.eu!legal -content!ENITXTIPDFl?url =CELEX:32018R1725ftfrom=EN Frontex - European Border and Coast Guard Agency www.frontex .europa .eu I Pl. Europejski 6, 00-844 Warsaw, Poland I Tel. +48 22 205 95 00 I Fax +48 22 205 95 01
11.4.8 The contractor must ensure that the personnel implementing the FWC and any future replacement personnel possess the professional qualifications and experience required to provide the services, as the case may be on the basis of the selection criteria set out in the tender specifications. 11.4. 9 At the contracting authority's reasoned request, the contractor must replace any member of personnel who: (a) does not have the expertise required to provide the services; or (b) has caused disruption at the premises of the contracting authority. The contractor bears the cost of replacing its personnel and is responsible for any deiay in providing the services resulting from the replacement of personnel. 11.4. 1O The contractor must record and report to the contracting authority any problem that affects its ability to provide the services. The report must describe the problem, state when it started and what action the contractor is taking to resolve it. 11.4. 11 The contractor must immediately inform the contracting authority of any changes in the exclusion situations as declared, according to Article 137 (1) of Regulation (EU) 2018/ 1046. 11. 5. Communication between the parties 11.5.1. Form and means of communication Any communication of information, notices or documents under the FWC must: (a) be made in writing in paper or electronic format in the language of the contract; (b) bear the FWC number and, if applicable, the specific contract number; (c) be made using the relevant communication details set out in Article 1.8; and (d) be sent by mail, email or, for the documents specified in the special conditions, via e-PRIOR. If a party requests written confirmation of an e-mail within a reasonable time, the other party must provide an original signed paper version of the communication as soon as possible. The parties agree that any communication made by email has full legal effect and is admissible as evidence in judicial proceedings. 11.5.2. Date of communications by mail and email Any communication is deemed to have been made when the receiving party receives it, unless this FWC contract refers to the date when the communication was sent. E-mail is deemed to have been received by the receiving party on the day of dispatch of that e-mail, provided that it is sent to the e-mail address indicated in Article 1.8. The sending party must be able to prove the date of dispatch. In the event that the sending party receives a non -delivery report, it must make every effort to ensure that the other party actually receives the communication by email or mail. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline. Mail sent to the contracting authority is deemed to have been received by the contracting authority on the date on which the department responsible referred to in Article 1.8 registers it. Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message was delivered to the specified recipient. Frontex - European Border and Coast Guard Agency www.frontex.europa.eu I Pl. Europejski 6, 00-844 Warsaw, Poland I Tel. +48 22 205 95 00 I Fax +48 22 205 95 01