CONCLUSIONS REPORT. Technical Assistance (Water for Health) Zambia. Complaint SG/G/2017/02

Transcription

1 Technical Assistance (Water for Health) Zambia Complaint SG/G/2017/02 Complaints Mechanism - Complaints Mechanism - Complaints Mechanism - Complaints Mechanism CONCLUSIONS REPORT 1 st June 2017

2 EIB Complaints Mechanism Prepared by Complaints Mechanism Lurdes Serra Felismino Alcarpe Head of Division Complaints Mechanism External Distribution Complainant: Jens Byskov Internal Distribution EIB Management Committee Secretary General Inspector General EIB services concerned 2

3 Technical Assistance (Water for Health) Zambia The EIB Complaints Mechanism The EIB Complaints Mechanism provides the public with a tool enabling alternative and pre-emptive resolution of disputes in cases whereby the public feels that the EIB Group did something wrong, i.e. if a member, or members, of the public consider(s) that the EIB has committed an act of maladministration. When exercising the right to bring a complaint against the EIB, any member of the public has access to a two-tier procedure, one internal the Complaints Mechanism Division (EIB-CM) - and one external the European Ombudsman (EO). If complainants are unhappy with the outcome of the EIB-CM s procedure, a confirmatory complaint can be submitted by the complainant within 15 days of the receipt of the EIB-CM s reply. Complainants who are not satisfied with the outcome of the EIB-CM s procedure and who do not wish to make a confirmatory complaint may also lodge a complaint of maladministration against the EIB with the European Ombudsman. The EO was created by the Maastricht Treaty of 1992 as an EU institution to which any EU citizen or entity may appeal to investigate any EU institution or body on the grounds of maladministration. Maladministration means poor or failed administration. This occurs when the EIB Group fails to act in accordance with the applicable legislation and/or established policies, standards and procedures, fails to respect the principles of good administration or violates human rights. Some examples, as cited by the European Ombudsman, are: administrative irregularities, unfairness, discrimination, abuse of power, failure to reply, refusal to provide information and unnecessary delay. Maladministration may also relate to the environmental or social impacts of the EIB Group s activities and to project cycle-related policies and other applicable policies of the EIB. The EIB Complaints Mechanism is intended not only to address non-compliance by the EIB with its policies and procedures but to endeavour to solve the problem(s) raised by complainants such as those regarding the implementation of projects. For further and more detailed information regarding the EIB Complaints Mechanism please visit our website: 3

4 EIB Complaints Mechanism Table of Contents EXECUTIVE SUMMARY COMPLAINT METHODOLOGY OF THE INQUIRY REGULATORY AND CONTRACTUAL FRAMEWORK HANDLING OF THE COMPLAINT FINDINGS CONCLUSIONS

5 Technical Assistance (Water for Health) Zambia CONCLUSIONS REPORT EXECUTIVE SUMMARY In an dated 15 February 2017, Mr Jens Byskov (hereinafter the Complainant) lodged a complaint with the EIB- CM. The complaint concerns the alleged mismanagement and neglect of the recipient country for the EIB preparations of the WSS&HW project in Zambia. The Complainant alleges that his dismissal by in June 2015 was a clear violation of the conditions for award of the tender to He further alleges that the replacement expert recruited had a much lower rate than him as a key expert and that EIB staff were not aware of the events that led to his dismissal, but did not object to his dismissal when he informed them and therefore should be considered jointly responsible for the violation of the regulations. On 14 March 2017 the EIB-CM declared the complaint admissible. The EIB-CM launched a review of the complaint by reviewing all the correspondence received from the Complainant, holding internal consultation meetings with the relevant EIB services, checking the Bank s database and analysing all the relevant information related to the complaint. The analysis by the EIB-CM led to the following conclusions: The allegation that won the tender amongst other things due to the qualifications of the two key experts is certainly true, but the analysis shows that they were not the primary driver for coming ahead in the selection process. The allegation that the Complainant was replaced by a substitute with a much lower rating than the Complainant as key expert is not grounded. The allegation that the EIB was not consulted at a responsible level about the Complainant s dismissal and replacement by another expert is not grounded. The allegation that the Complainant s dismissal was a clear violation of the conditions for award of the tender is not grounded. It was not necessary to analyse the allegation that the EIB team took joint responsibility for the violation of the conditions for award of the tender since it did not reverse COWI s decision. 5

6 EIB Complaints Mechanism CONCLUSIONS REPORT Complainant: Jens Byskov Date received: 15 February COMPLAINT 1.1 In an dated 15 February 2017, Mr Jens Byskov (hereinafter the Complainant) lodged a complaint with the EIB-CM. The complaint concerns the alleged mismanagement and neglect of the recipient country for the EIB preparations of the WSS&HW project in Zambia. 1.2 The Complainant alleges that his dismissal by in June 2015 was a clear violation of the conditions for award of the tender to He further alleges that the replacement expert recruited had a much lower rate than him as a key expert and that EIB staff were not aware of the events that led to his dismissal, but did not object to his dismissal when he informed them and therefore should be considered jointly responsible for the violation of the regulations. 1.3 He elaborates that despite the problems with this Technical Assistance contract, the actual project to improve water supply, sanitation and healthcare waste handling must be implemented and states that he will not accept non-implementation unless it is clearly indicated and reasonably argued that the Bank does not find the project feasible or fundable. 1.4 In a later dated 28 February 2017, the Complainant hints at the possibility of a corruption scheme between the Team Leader of the project and the Zambian authorities. 1.5 On 14 March 2017, the EIB-CM acknowledged receipt of the complaint by informing the Complainant of the launching of an inquiry into his case concerning the allegations related to his dismissal from the expert s team and whether this constituted a breach of the EIB Technical Assistance contract. 1.6 The Complainant was further informed that, in line with 2.3 and 4 of the EIB Complaints Mechanism Principles, Terms of Reference and Rules of Procedures, all the other allegations as well as the EIB s decision to finance the project fall outside the scope of the EIB-CM. 1.7 He was also informed that the allegations concerning fraud and corruption had been transferred to the EIB Anti-Fraud and Corruption Division for their consideration. 1.8 Finally the Complaint was informed of the date by which he might expect a formal reply from the Bank. 2. METHODOLOGY OF THE INQUIRY 2.1 In the course of the inquiry, the EIB-CM reviewed the complaint submitted to the EIB together with all the correspondence received from the Complainant, held internal consultation meetings with the relevant EIB services, checked the Bank s database and analysed all the relevant information related to the complaint. 3. REGULATORY AND CONTRACTUAL FRAMEWORK 3.1 The European Investment Bank Complaints Mechanism Principles, Terms of Reference and Rules of Procedure 6

7 Technical Assistance (Water for Health) Zambia The EIB-CM applies to complaints of maladministration lodged against the EIB Group (Article 4.1 of Title II Principles of the EIB Complaints Mechanism Principles, Terms of Reference and Rules of Procedure - CMPTR). Complaints may concern any alleged maladministration of the EIB Group in its actions and/or omissions (Article 4.1 of Title IV Rules of Procedure of the EIB CMPTR) Maladministration occurs when the EIB Group fails to act in accordance with the applicable legislation and/or established policies, standards and procedures, fails to respect the principles of good administration or violates human rights (Article 1.2 of Title II Principles of the CMPTR) Complaints concerning allegations of fraud or corruption are not admissible and are dealt with by the EIB Inspectorate General Fraud Investigations Division under the EIB Anti-Fraud Policy (Article 1.3 of Title II Principles of the CMPTR) Decisions concerning the investment mandate of the EIB, its credit policy guidelines or the EIB s participation in financing operations fall outside the scope of the EIB-CM (Article 4.1 of Title II Principles of the CMPTR) The EIB Complaints Mechanism is not competent to investigate complaints concerning national, regional or local authorities (e.g. government departments, state agencies and local councils) (Article 2.3 of Title IV Rules of Procedure of the CMPTR). 3.2 The Technical Assistance Cooperation Agreement (hereinafter the Technical Assistance Agreement) for the Technical Assistance Operation Entitled Preparatory Technical Assistance for the Water Supply, Sanitation and Healthcare Waste (WSS&HW) Project for Public Health Care Facilities in Zambia between the Republic of Zambia and the European Investment Bank Article 4 of the Technical Assistance Agreement foresees that the Consultant will be selected by the Bank in accordance with the standard procedures and documents used by the Bank. 3.3 The Call for Tender Terms of Reference (hereinafter the Terms of Reference) for the Preparatory Technical Assistance for the Water Supply, Sanitation and Healthcare Waste Project for Public Health Facilities in Zambia (sent to all tenderers) The Terms of Reference state that: The Consultant will mobilise a coherent, dynamic and organised professional team of experts with experience in similar assignments and that it will provide the qualifications and experience, as well as a Curriculum Vitae, of each specialist to be assigned Civil servants and other staff of the public administration of the beneficiary country cannot be recruited as experts All experts who have a crucial role in implementing the contract are referred to as key experts. The profile for Key Expert 2 is defined as follows: o o Qualifications and skills MD, public health, health services management, biomedical engineering or equivalent Fluency in English language is a mandatory requirement Professional experience 15 years of experience with planning/designing/monitoring of basic health services in developing countries Experience in design of healthcare assets maintenance systems is desired Experience in Africa is requested The selection of experts shall be subject to approval by the Contracting Authority, after agreement has been obtained from the Promoter Support/backstopping staff cannot be assigned as short or long-term experts while still maintaining their original assignments 3.4 The Service Contract N TA ZM IF2 between the European Investment Bank and A/S (hereinafter the Service Contract) for the Preparatory Technical Assistance for the Zambia Water Supply, Sanitation & Healthcare Waste Project for Public Health Facilities concluded on 6 October 2014 and its Annex I 7

8 EIB Complaints Mechanism General Conditions for service contracts financed by the European Community (hereinafter the General Conditions) Article 17 Replacement of personnel Article 17.1 foresees that the Consultant shall not make changes to the agreed personnel without the prior written approval of the Contracting Authority. Article 17.2 foresees that, on the basis of a written and justified request, the Contracting Authority can order a replacement if it considers that a member of staff is inefficient or does not perform his/her duties under the contract. Article 17.3 foresees that, where a member of staff must be replaced, the replacement must possess at least equivalent qualifications and experience. 3.5 Addendum n 1, signed by the EIB on 4 March 2016 (hereinafter Addendum n 1), to Service Contract n TA ZM IF2 Preparatory Technical Assistance for the Water supply, Sanitation and Healthcare Waste Project for Public Health Facilities in Zambia, concluded on 6 October 2014 between the European Investment Bank and A/S Paragraph n 3 of Addendum n 1 states that Annex IV of the Service Contract will be amended as follows: Annex IV: Key Experts to the Contract Mr Frederic van Woerkom is replaced by Ms Janet Magner as Key Expert 1 and Mr Jens Byskov is replaced by Mr Esben Sonderstrup as Key Expert HANDLING OF THE COMPLAINT 4.1 Correspondence with the Complainant On 15 February 2017 EIB-CM received an containing a complaint addressed to the EIB leadership entitled complaint on mismanagement and neglect of the recipient country for the EIB preparations of the WSS&HW project in Zambia. Attached to the complaint were a draft report from the questionnaire administered to facility heads and several s addressed by the Complainant to EIB staff, staff from the Zambian authorities and staff from dating from 19 July 2015 to 14 November The content of this mostly detailed the Complainant s version of the events that led to his dismissal from the Technical Assistance team by (the Team Leader and supervisor of kept disregarding his input, the Zambian Ministry of Health failed to adequately support the consultants work, the EIB staff took arrogant stands with senior officials in the Ministry, the Team Leader did not confirm the inception report with the Complainant and offended the Director for Disease control in the Ministry of Health and re-lodged the project with the Director of Policy and Planning, the EIB staff disregarded his own very high expertise concerning the approach to take, the Team Leader accused the Complainant of refusing to draft the Project Implementation Manual) after eight months of work The second part of the relates mainly to issues concerning the EIB funding of the project and the Complainant asks to have a direct response from the Bank on whether it is going to finance the project and if not, to substantiate the reasons why it found the project to not be feasible or fundable The s attached to the complaint mainly relate to the same issues and mainly contain the Complainant s views on the events or his opinions on what should be done and restate his belief that the project is very important in the context of public health in Zambia and that it is feasible and should be implemented The actual subject of the complaint was not clear and therefore the EIB-CM contacted the Complainant on 22 February 2017 to ask him to provide a phone number so that he could be contacted to clarify the subject of the complaint and to explain to him the remit of the EIB-CM A telephone conversation took place on 27 February 2017 during which it was explained to the Complainant that the EIB-CM is competent to deal only with allegations of maladministration against the EIB Group (see 8

9 Technical Assistance (Water for Health) Zambia paragraph 3.1.1). Furthermore, the EIB-CM is not competent to deal with allegations against national authorities (see paragraph 3.1.5) and the EIB s participation in financing operations falls outside the scope of the EIB-CM (see paragraph 3.1.4) During the telephone conversation the Complainant also made further oral allegations of suspicion of corruption and was informed that allegations of corruption fall also outside the remit of the EIB-CM (see paragraph 3.1.3) The Complainant further confirmed that he was also complaining about the legality of his dismissal by which in his opinion was carried out in breach of the EIB Technical Assistance contract The conversation was followed by an from the Complainant on 28 February 2017 whereby he acknowledged that he had no proof of corruption concerning this contract but that he had suspicions On 14 March 2017, the EIB-CM acknowledged receipt of the complaint and confirmed that it would be carrying a review only of the allegations concerning the Complainant s dismissal from the team of experts and whether this had been done in breach of the EIB Technical Assistance Contract. It was also confirmed that the allegations concerning the EIB decision to finance fall outside the remit of the EIB-CM (see paragraph 3.1.4). The Complainant was also informed that the allegations concerning fraud and corruption would be transmitted to the EIB Fraud Investigations Division The Complainant replied with an on 14 March 2017 whereby he was attaching further s between himself and staff (dated 3 June to 5 June 2015) concerning his dismissal On 2 April 2017, the Complainant sent another to the EIB-CM asking if his could be forwarded to the top leadership since he would like to have information on the status of the financing of the project. 4.2 Action by the EIB-CM Following the request for information from the Complainant, the EIB-CM forwarded his request to the EIB Infodesk on 11 April EIB Infodesk acknowledged receipt on 11 April 2017 and a reply was provided to the Complainant on 4 May The allegations concerning suspicions of corruption were forwarded to the EIB Fraud Investigations Division on 21 April On 28 March 2017 the EIB-CM met with the EIB team in charge of the Technical Assistance contract to discuss the complaint with them and gather further information. 5. FINDINGS 5.1 The allegation that won the tender amongst other things due to the qualifications of the two key experts, including the Complainant as health services expert (Key Expert 2) The EIB-CM analysed the process for awarding the contract to While being correct that the qualifications of the two experts were part of the criteria for the awarding of the contract, it is worth noting that out of the seven tenders evaluated, the experts presented by ranked second and third out of the seven and were followed very closely in terms of percentage points by at least two other experts in each case (from 0.5 to 2 percentage points). The criteria where was ranked much higher than any of the others was Organisation and Methods (6 percentage points ahead of the second best). The allegation that won the tender amongst other things due to the qualifications of the two key experts is certainly true, but the analysis shows that they were not the primary driver for coming ahead in the selection process The allegation that the Complainant was replaced by a substitute with a much lower rating than the Complainant as key expert 9

10 EIB Complaints Mechanism In order to analyse this allegation, the EIB-CM referred to the criteria defined in the Terms of Reference (see paragraph 3.3.1, third bullet point) and to the CVs of the Complainant and the replacement appointed by The Terms of Reference state that Key Expert 2 will have the following qualifications: MD, public health, health services management, biomedical engineering or equivalent and fluency in English language. The analysis of the CV of the Complainant shows that he holds an MSc in Community Health in Developing Countries and a Diploma in Public Health and is a medical doctor. The analysis of the CV of the replacement Key Expert 2 shows that he holds a Master of International Health and a BSc in Engineering. The Complainant rated himself basic in English language while the replacement rates himself excellent. It can be concluded that both profiles are in accordance with what was requested in the Terms of Reference as far as the qualifications are concerned The Terms of Reference state that the Key Expert 2 will have the following professional experience: 15 years of experience with planning/designing/monitoring of basic health services in developing countries, experience in the design of healthcare assets maintenance systems is desired, experience in Africa. The analysis of the CV of the Complainant shows that the Complainant has more than 30 years of experience with health services including extensive periods in Africa. The analysis of the CV of the replacement Key Expert 2 shows that he has 16 years of experience with basic health services including extensive periods in Africa. A deeper analysis of both CVs shows that the Complainant is more experienced in asset management and less so in planning and designing. The replacement Key Expert 2 shows more experience in designing healthcare programmes and less so in asset management. It can therefore be concluded that both are senior professionals in healthcare services and the two profiles meet the requirements of the Terms of Reference as far as professional experience is concerned. 5.3 The allegation that the EIB was not consulted at a responsible level about the Complainant s dismissal and replacement by another expert The Complainant alleges that his dismissal was performed without the EIB being consulted at a responsible level. When questioned regarding this allegation, the EIB team stated that this was not true. The EIB team had to intervene several times with before the dismissal of the Complainant due to a lack of committed leadership in the project and the fact that the agreed deliverables were not being delivered. They also stressed that both the Team Leader and Key Expert 2 found it difficult to understand what was being requested of them and in particular Key Expert 2 already wanted to prepare an engineering project, which was not the aim of the Technical Assistance. The team also stressed that the feedback they received from the project promoter was that both consultants were not taking into account what the project promoter was telling them As further proof that this had been a major concern, the EIB team wrote a letter to on 29 July 2015 where it was stated that the Bank had observed a lack of proper understanding of the ToR and a lack of committed leadership in this project as well as repeated delays in reporting by the team. This situation led to the EIB team having to address shortcomings in the Inception and Interim Reports and to a lot of discussions, meetings and missions to Zambia that should not have been necessary under normal circumstances. The letter also states that errors in diplomacy by the key experts had at times impaired smooth cooperation with the Promoter and the PMU In a letter dated 30 September 2015 the EIB once again wrote to with a series of requests for improvement of the situation where it was stated that the EIB team was concerned that would not be able to bring the quality of the requested outputs to an acceptable level with the current team and strongly recommended that consider suitable replacements within the team of experts that would ensure a high quality of output. Admittedly the Complainant was no longer a member of the team at this stage, but these comments related to the performance of the initial team Finally, Addendum n 1 to the Service Contract was signed by the EIB on 4 March 2016, via which the EIB approved the replacement of Key Experts 1 and The allegation that the Complainant s dismissal was a clear violation of the conditions for award of the tender In order to analyse this allegation, the EIB-CM analysed all the conditions related to staff matters both in the Terms of Reference and the Service Contract. 10

11 Technical Assistance (Water for Health) Zambia As far as the Terms of Reference are concerned, it was already concluded under and above that the replacement was carried out in accordance with the qualifications and professional experience thereby specified The Terms of Reference also specify that the selection of experts shall be subject to approval by the Contracting Authority, after agreement has been obtained from the Promoter. The Contracting Authority, the EIB, signed Addendum n 1 to the Service Contract whereby it agreed to the replacement of the experts. In the database, the EIB-CM found s from the Ministry of Health (the Promoter) dated from mid-june 2015 whereby they stated that they were worried that changes were being made to the project team and that they had not been given prior notice. In one of the s they also thank the EIB for having stepped in at that point in time to bring transparency to the process. Indeed their worries seem to be in connection with the fact that the Ministry of Health was not informed about the Complainant s dismissal but they also state that they would like to see a stable team working on the project. As far as the selection of the replacement Key Experts 1 and 2 are concerned, the EIB team confirmed that the Promoter did not have any objections to the selected profiles Furthermore, the Terms of Reference also state that civil servants and other staff of the public administration of the beneficiary country cannot be recruited as experts and that support/backstopping staff cannot be assigned as short or long-term experts while still maintaining their original assignments. These exclusion criteria did not apply to any of the experts hired as replacements for Key Experts 1 and Concerning the Service Contract, it specified that the Consultant shall not make changes to the agreed personnel without the prior written approval of the Contracting Authority, that on the basis of a written and justified request, the Contracting Authority can order a replacement if it considers that a member of staff is inefficient or does not perform his/her duties under the contract, and that where a member of staff must be replaced, the replacement must possess at least equivalent qualifications and experience. We have already concluded (see paragraph 5.4.3) that the replacement of the consultants was carried out with the prior written approval of the Contracting Authority and it was furthermore requested by the same Contracting Authority (see paragraph 5.3.3). We have also concluded (paragraphs and 5.2.3) that the replacement Key Expert 2 had an equivalent level of qualifications and experience It can therefore be concluded that the replacement of experts was performed in accordance with the provisions both of the Terms of Reference and of the Service Contract and therefore the allegation that the Complainant s dismissal was a clear violation of the conditions for award of the tender is not grounded. 5.5 The allegation that the EIB team took joint responsibility for the violation of the conditions for award of the tender since it did not reverse COWI s decision Since the allegation of violation of the conditions for award of the tender is not grounded, there is no need to analyse this allegation. 6. CONCLUSIONS 6.1 The allegation that won the tender amongst other things due to the qualifications of the two key experts is certainly true, but the analysis shows that they were not the primary driver for coming ahead in the selection process. 6.2 The allegation that the Complainant was replaced by a substitute with a much lower rating than the Complainant as key expert is not grounded since the analysis shows both profiles have equivalent qualifications and professional experience in healthcare services that are in accordance with what was requested in the Terms of Reference. 6.3 The allegation that the EIB was not consulted at a responsible level about the Complainant s dismissal and replacement by another expert is not grounded since the analysis shows that the EIB not only approved the appointment of the replacement Key Expert 2 but had also expressed serious doubts about the effectiveness of the previous team. 11

12 EIB Complaints Mechanism 6.4 The allegation that the Complainant s dismissal was a clear violation of the conditions for award of the tender is not grounded since all the conditions specified both in the Terms of Reference and the Service Contract for the dismissal and subsequent replacement were met. 6.5 The allegation that the EIB team took joint responsibility for the violation of the conditions for award of the tender since it did not reverse COWI s decision was not analysed since the allegation that the dismissal was a violation of the conditions for award of the tender was deemed to be not grounded. Since no grounds could be found for the Complainant s allegations, the EIB-CM has decided to close the case. F. Alcarpe Head of Division Complaints Mechanism 1 st June 2017 L. Serra Complaints Officer 1 st June