Derogations from Annex III
Cases for Derogation
The main reasons to derogate from Annex III to the FPA are usually related to:
- security, operational, technical or quality reasons;
- shortfall or unavailability of the supplies on the markets;
- costs or delays due to transport;
- legislation in the country of operation, or
- if the fulfilment of the contractual obligation would harm the Partner’s mandate or the safety of its staff or beneficiaries.
DEROGATIONs GRANTED BY ECHO
Any derogation from Annex III necessary during the implementation of the Action needs to be approved by ECHO.
Requests for derogation may be founded on one of the above reasons. When requesting derogation, the partner will be as precise as possible about the nature of the request and briefly explain the reasons for this request.
The request should preferably be submitted at proposal stage (in section 11 of the Single Form). If not possible, the partner will use the modification request to introduce the derogation. These requests, if accepted by ECHO, will be included in Article 6 of the Specific Grant Agreement.
Derogations from partner's rules
Derogations or exceptions from partners' procurement rules of the partner must be duly approved by the partner's decision-making body following the internal rules and procedures established by the organisation. Those decisions should be documented and traceable.
Derogations in URGENT ACTION
To properly manage the procurement during an urgent action, the partners have to include in their procurement procedures provisions on urgent actions and exceptional circumstances, while maintaining respect of the mandatory principles.
Action expressly characterised as urgent in the SGA
Annex III foresees that the partners may apply, in addition to their internal procedures on exceptions, a procurement procedure based on a single offer in urgent actions when the Action funded by ECHO is expressly characterised as being an urgent one, as evidenced by the insertion of an Article 6.3 of the Specific Grant Agreement.
Action not characterised as urgent in the SGA
If there is no insertion of an Article 6.3 in the Specific Grant Agreement (e.g. when urgent needs arise during the duration of an action which would lead to the inclusion of a new urgent result/activity), the partner can:
a) Apply its exceptional procurement procedures (such as single offer) or, if it does not have exceptional procurement procedures in place,
b) Derogate from their regular procurement procedures, if the following conditions are respected:
- the procurement could not have been reasonably planned in advance;
- the procurement addresses urgent needs and needs to start immediately, being that any delay incurred by employing regular procurement procedures would put lives at risk;
- the urgency is not based on circumstances attributable to the partner (e.g. the partner cannot use exceptional procedures to make up for bad planning or lack of resources),
- the recourse to exceptional procurement procedures is only temporary, i.e. in use until such time that the partner can start procuring in line with the regular procurement procedures ('bridging the gap'),
- the partner's rules and procedures on invoking exceptions from its standard rules are duly followed,
- the decisions concerning the use of exceptional procurement procedures are taken at an appropriate level of authority to grant the derogation taking into account the value of the contract, ensuring the absence of conflicts of interest, and
- all exceptions to the standard procurement rules are properly documented in the Partner's procurement files (to be made available in the event of any possible audit).
EXCEPTIONs ON QUALITY ASSURANCE DOCUMENTATION
The Annex III is mandatory in all cases as far as quality of food and medical supplies is concerned, regardless of ECHO contribution and regardless of the value of the procurement contract.
Thus, where the partner, for circumstances beyond its control, is unable to demonstrate compliance with internationally accepted product standards, it must demonstrate that the procedures used ensure equivalent quality assurance to international standards, which includes at least compliance with the “do-no-harm principle” and the standards accepted by the national or regional regulatory authorities.
Where the partner, for circumstances beyond its control, is unable to demonstrate compliance with internationally accepted product standard, it may demonstrate instead that the supplies offer the best quality available. Reasons for this inability to rely on traditional, internationally recognised assurance may be linked to import or other obstacles in place by the national authorities or may be a result of the remoteness of the implementation of the Action or other factors beyond the partner's control.
As a general principle, exceptional cases should be discussed with ECHO as soon as possible after they arise, taking into account that the important consideration is the safety of the staff and of beneficiaries. When structural issues are known to exist in an area, these should be raised from the outset in the Single form in section 11. Together with ECHO the partner will, in these exceptional circumstances, be able to agree on an alternative way of demonstrating that the supplies offer the “best quality available”, e.g. by reliance on the standards set by the national or regional authorities.