Implementation model
1. The Programme shall be implemented, as appropriate, in a phased approach until the completion of the activities set out in Article 4. The Commission, in coordination with the Member States, shall ensure that the procurement approach allows for the widest competition possible in order to foster appropriate participation of the entire industrial value chain for the contracts related to the provision of the services referred to in Article 10(1) and the contracts related to the purchase of the services referred to in Article 10(2).
2. The activities set out in Article 4 of this Regulation shall be implemented through several contracts awarded in compliance with the Financial Regulation and the principles of procurement under Article 20 of this Regulation and may take the form of concession contracts, supply, service, or works contracts or mixed contracts.
3. The contracts referred to in this Article shall be procured under direct or indirect management and may take the form of an inter-institutional procurement, as referred to in Article 165(1) of the Financial Regulation, between the Commission and the Agency, whereby the Commission shall assume the role of lead contracting authority.
4. The procurement approach referred to in paragraph 1 of this Article and the contracts referred to in this Article shall comply with the implementing acts referred to in Articles 9(2), 10(4) and 10(5).
5. If the result of the procurement approach referred to in paragraph 1 of this Article takes the form of concession contracts, those concession contracts shall set out the architecture of the governmental infrastructure of the secure connectivity system, roles, responsibilities, financial scheme and the allocation of risks between the Union and the contractors, by taking into account the ownership regime under Article 6 and the funding of the Programme under Chapter III.
6. If a concession contract is not awarded, the Commission shall ensure an optimal implementation of the objective referred to in Article 3(1), point (a), by procuring, as appropriate, a supply, service or works contract or a mixed contract.
7. The Commission shall take the necessary measures to ensure continuity of the governmental services if the contractors referred to in this Article are unable to fulfil their obligations.
8. Where appropriate, the procurement procedures for the contracts referred to in this Article may also take the form of joint procurements with Member States, in accordance with Article 165(2) of the Financial Regulation.
9. The contracts referred to in this Article shall in particular ensure that the provision of services based on commercial infrastructure preserves the Union’s essential interests and the Programme’s general and specific objectives referred to in Article 3. Those contracts shall also include adequate safeguards to avoid any overcompensation of the contractors referred to in this Article, distortions of competition, conflicts of interest, undue discrimination or any other hidden indirect advantages. Such safeguards may include the obligation of accounting separation between the provision of governmental services and the provision of commercial services, including the setting up of a structurally and legally separate entity from the vertically integrated operator for the provision of governmental services, and the provision of open, fair, reasonable and non-discriminatory access to the infrastructure necessary for the provision of commercial services. The contracts shall also ensure that the conditions of Article 22 are met throughout their duration.
10. Where the governmental and commercial services rely on common subsystems or interfaces to ensure synergies, the contracts referred to in this Article shall also determine which of those interfaces and common subsystems shall be part of the governmental infrastructure in order to ensure the protection of the security interests of the Union and its Member States.
Principles of procurement
1. Public procurement under the Programme shall be carried out in accordance with the rules on procurement laid down in the Financial Regulation.
2. In public procurement procedures for the purpose of the Programme, complementing the principles laid down in the Financial Regulation, the contracting authority shall act in accordance with the following principles:
(a)
to promote in all Member States across the Union and throughout the supply chain, the widest and most open participation possible by economic operators, in particular new entrants, start-ups and SMEs, including in the case of subcontracting by the tenderers;
(b)
to ensure effective competition in the tendering process, and where possible, to avoid reliance on a single provider, in particular for critical equipment and services, while taking into account the objectives of technological independence and continuity of services;
(c)
to follow the principles of open access and competition, by tendering on the basis of the provision of transparent and timely information, clear communication of the applicable procurement rules and procedures, selection and award criteria and any other relevant information allowing a level-playing field for all potential tenderers;
(d)
to protect the security and public interest of the Union and its Member States, including through a reinforcement of the strategic autonomy of the Union, in particular in technological terms, by performing risk assessments and implementing disruption risk mitigation measures, for instance when only one supplier is available;
(e)
to comply with the general security requirements referred to in Article 30(3) and to contribute to the protection of the essential security interests of the Union and its Member States;
(f)
by way of derogation from Article 167 of the Financial Regulation, to use, where appropriate, multiple supply sources in order to ensure better overall control of the Programme, its cost and schedule;
(g)
to promote service accessibility, continuity and reliability;
(h)
to enhance the safety and sustainability of outer space activities, by implementing appropriate measures in accordance with the provisions set out in Article 8;
(i)
to ensure the effective promotion of equal opportunities for all, the implementation of gender mainstreaming and of the gender dimension and to aim to address the causes of gender imbalance, paying particular attention to ensure gender balance in evaluation panels.
Subcontracting
1. To encourage new entrants, start-ups and SMEs across the Union and their cross-border participation, and to offer the widest possible geographical coverage while protecting the Union’s autonomy, the contracting authority shall request that the tenderer subcontract part of the contract by competitive tendering at the appropriate levels of subcontracting to companies other than those which belong to the tenderer’s group.
2. For contracts above EUR 10 million, the contracting authority shall ensure that at least 30 % of the value of the contract is subcontracted by competitive tendering at various levels of subcontracting to companies outside the group of the prime tenderer, in particular in order to enable the cross-border participation of SMEs in the space ecosystem.
3. The tenderer shall provide reasons for not fulfilling a request made under paragraph 1 or for deviating from the percentage referred to in paragraph 2.
4. The Commission shall inform the Programme committee referred to in Article 47 of the fulfilment of the objectives referred to in paragraphs 1 and 2 of this Article for contracts signed after 20 March 2023.
Eligibility and participation conditions for the preservation of the security, integrity and resilience of operational systems of the Union
Eligibility and participation conditions shall apply to the award procedures carried out in the implementation of the Programme, where necessary and appropriate to preserve the security, integrity and resilience of the operational Union systems as set out in Article 24 of Regulation (EU) 2021/696, taking into account the objective to promote the Union’s strategic autonomy, in particular in terms of technology across key technologies and value chains, while preserving an open economy.
Protection of the financial interests of the Union
Where a third country participates in the Programme by means of a decision adopted pursuant to an international agreement or on the basis of any other legal instrument, the third country shall grant the necessary rights and access required for the authorising officer responsible, OLAF and the Court of Auditors to comprehensively exercise their respective competences. In the case of OLAF, such rights shall include the right to carry out investigations, including on-the-spot checks and inspections, as provided for in Regulation (EU, Euratom) No 883/2013.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
