Ministers' Deputies
    CM Documents

    CM(2004)105 revised 3 12 November 2004
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    907 Meeting, 24 November 2004
    11 Administration and Logistics


    11.1 Revised Draft Resolutions on:

    - Service Contracts of Consultants and
    - Outsourcing Contracts to External Service Providers
    Secretariat Memorandum prepared by the Directorate General of Administration and Logistics
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    Introduction

    1. It should be noted that as the only legal instrument currently available, Resolution (76) 4 on consultants is currently used for both service contracts with consultants and outsourcing contracts. However, the reasons for engaging and the tasks assigned to third parties under service contracts with consultants on the one hand and outsourcing contracts with external service providers on the other are fundamentally different and should be regulated separately. Therefore, the draft Resolution on service contracts of consultants intends to replace Resolution (76) 4 on consultants, and the new draft Resolution on outsourcing contracts aims to provide a regulatory instrument for all outsourcing contracts with external providers.

    2. The draft Resolution on service contracts of consultants and a new draft Resolution on outsourcing contracts were thoroughly examined by the GR-AB at its meeting of 12 July 2004 (see CM(2004)105 and GR-AB(2004)CB9) and at its meeting of 16 September 2004 (see CM (2004) 105 revised and GR-AB(2004)CB10). During the course of the third reading of the draft Resolution on service contracts of consultants by the GR-AB (see CM(2004)105 revised 2) at its meeting of 19 October 2004 a number of further amendments to the text were agreed. The Secretariat was then invited to revise the draft Resolution on outsourcing contracts in the same spirit. The changes appear as shadowed bold text and strikethrough.

    RESOLUTION Res(2004)…

    ON SERVICE CONTRACTS OF CONSULTANTS

    (Adopted by the Committee of Ministers on …
    at the … meeting of the Ministers' Deputies)

    The Committee of Ministers,

    Considering that Resolution (76) 4 on consultants no longer corresponds to the needs of the Council of Europe;

    Having regard to Resolution … on outsourcing contracts of external service providers;

    Considering that it is necessary to set down the conditions under which service contracts are awarded to third parties;1

    Having regard to the relevant provisions of the Financial Regulations, in particular as regards decentralisation of financial management and delegation of authority, and to the principles of results-based budgeting;

    In pursuance of Articles 16 and 17 of the Statute,

    Resolves as follows:

    I. Definition and scope

    1. A service contract is an agreement with a third party for the provision of specialised services. The Staff Regulations shall not apply to parties engaged under service contracts.

    2. Third parties engaged under service contracts shall be called “consultants”.

    3. There shall be three categories of consultants:

    ­ consultants for the programmes of activities, for example, intergovernmental co-operation, assistance and monitoring activities, and activities of the Parliamentary Assembly, of the Congress of Local and Regional Authorities of the Council of Europe, of the European Court of Human Rights and of the Partial Agreements;

    ­ support services consultants, for example, information technologies, buildings and logistics, including contracts concerning activities related to the administrative modernisation of the Organisation;

    ­ consultants to the Secretary General assisting him/her with questions of general interest that cannot form part of the terms of reference of a contract awarded to a consultant for the programme of activities or a support services consultant.

    4. The specialised tasks concerned shall be essentially non-recurrent and of such a specialised nature that they cannot be performed either by the staff members of the Secretariat of the Council of Europe2 or by a member of the relevant committee. The Secretary General shall establish the necessary written procedures to ensure that these criteria are met whenever a consultant is to be engaged.

    5. Experts providing services to the Council of Europe on the basis of reimbursement of travel expenses and a subsistence allowance only do not fall within the scope of this Resolution.

    6. All references to the Secretary General in this Resolution shall be subject to the relevant provisions of the Statute of the Council of Europe, the Staff Regulations and the rules on delegation of authority.

    II. Selection of consultants and general principles governing contracts with consultants

    7. Consultants shall be engaged to perform a clearly defined task within a specific time-limit and in return for a specified fee.

    8. In the case of activities that fall under the responsibility of Steering or ad hoc Committees, the latter shall be consulted on the possible use of consultants in accordance with their terms of reference.

    9. Consultants shall be engaged selected by the Secretary General in accordance with the relevant provisions of the Financial Regulations to the largest possible extent on a competitive basis bearing in mind the requirement of impartiality and objectivity. In order to identify potential the most suitable consultants, the Secretary General may should when appropriate consult members of relevant committees, national authorities including the Permanent Representations, professional associations and academic bodies.

    10. The most important criterion in selecting a consultant shall be his/her competence to carry out the work required.

    11. The Secretary General shall promote endeavour to ensure a fair geographical distribution of service contracts of consultants.

    21 12. Consultants shall be required to carry out their work in an impartial and objective manner and to respect the applicable principles, rules and values of the Council of Europe,3 intellectual property rights and confidentiality.

    22 13. Contracts with consultants shall respect the Financial Regulations of the Council of Europe and the general principles of sound management.

    11 14. Service contracts shall be signed by the Secretary General on behalf of the Council of Europe and by the consultants concerned.

    III. Terms of reference

    12. 15. The contract shall clearly state the consultant's terms of reference, including the general lines of the work to be done and, its purpose and completion date.

    13. 16. The content of the terms of reference of consultants for the programmes of activities and for support services shall be determined with reference to the specific objectives and expected results of the projects or investments to which they relate.

    IV. Fees

    14. 17. Fees shall take account, inter alia, of the time required for work completion, the complexity of the tasks involved, and the quality of work required and existing market rates. A written record shall be kept of the procedure applied for determining the level of fees prior to the signature of the contract with the consultant.

    V. Supervision and reporting

    15. 18. The Secretary General shall ensure that the work assigned to a consultant has been carried out in accordance with the terms of the contract, in particular as regards the expected results and quality of work.

    16. 19. In case of failure of the consultant to perform the duties under the contract or if the consultant's services do not reach a satisfactory level, the Secretary General shall be entitled to regard this as a breach of contract and to refuse payment of the fees and expenses stipulated under the contract. Contracts shall provide for dispute-settlement procedures.

    17. 20. The Secretary General shall establish internal procedures for the collection and storing of all relevant information concerning service contracts of consultants.

    18. 21. Contracts with consultants shall expressly authorise the Secretary General to disclose any information that would be required by the Internal and External Auditor and the Committee of Ministers and the Parliamentary Assembly (as far as Parliamentary Assembly consultants are concerned) in the discharge of their functions.

    19. 22. The Secretary General shall provide the Committee of Ministers and the Parliamentary Assembly (as far as Parliamentary Assembly consultants are concerned) with an annual report, with summary tables, concerning all service contracts of consultants and including the following information: name, nationality and category of consultants, contracting administrative entity, source of funding, type of services provided, object of the contract and fees.

    20. 23. In fully justified and exceptional cases, specific confidentiality measures may be taken by the Secretary General in the interest of a consultant's security. In these cases, the identity of a consultant might not be disclosed in the report referred to in paragraph 19 22.

    VI. General principles governing contracts with consultants (merged into section II)

    21. Consultants shall be required to respect the applicable principles, rules and values of the Council of Europe,4 intellectual property rights and confidentiality.

    22. Contracts with consultants shall respect the Financial Regulations of the Council of Europe and the general principles of sound management.

    VII. Application of the Resolution

    23. 24. The Secretary General shall ensure the application of the principles outlined in this Resolution by way of an instruction on service contracts of consultants.

    VIII. Entry into force

    24. 25. This Resolution repeals and replaces the Resolution (76) 4 and enters into force on … 2004.

    RESOLUTION Res(2004)…

    ON OUTSOURCING CONTRACTS
    TO EXTERNAL SERVICE PROVIDERS

    (Adopted by the Committee of Ministers on …
    at the … meeting of the Ministers' Deputies)

    The Committee of Ministers,

    Having regard to Resolution … on service contracts of consultants;

    Considering that it is necessary to set down the conditions under which outsourcing contracts are offered to third parties;5

    Having regard to the relevant provisions of the Financial Regulations, in particular as regards decentralisation of financial management and delegation of authority and the principles of results-based budgeting;

    In pursuance of Articles 16 and 17 of the Statute,

    Resolves as follows:

    I. Definition and scope

    1. The term “outsourcing” shall be used to mean the result of a predominantly economic decision to ask a third party to perform totally or partially a general support task rather than using staff members of the Secretariat or investing in the acquisition of technological resources, facilities, etc. The Staff Regulations shall not apply to parties engaged under outsourcing contracts.

    2. Third parties contracted under outsourcing contracts shall be called “external service providers”.

    3. The tasks concerned shall be essentially ongoing and recurrent ones.6 More specifically, tasks that may be considered for outsourcing solutions are as follows: security, cleaning, catering, complex document production, mail delivery, complex maintenance work of buildings, specialised information technology services, proof-reading services, translation, management of official travel, etc.

    4. All references to the Secretary General in this Resolution shall be subject to the relevant provisions of the Statute of the Council of Europe, the Staff Regulations and the rules on delegation of authority.

    II. Reasons for outsourcing

    5. Recourse to outsourcing contracts shall be had for the following reasons:

    5.1. outsourcing shall allow the Organisation to focus on core issues while having support tasks assumed by an external service provider so that the latter tasks do not require disproportionate amounts of management resources and attention;

    5.2. by the very nature of the tasks concerned, external service providers shall bring extensive and specialised resources to meet the needs of the Organisation. This could include access to new technology, tools and techniques that the Organisation does not currently possess;

    5.3. outsourcing shall allow the Organisation to realise more quickly the anticipated benefits of process re-engineering by having an external service provider take over the process;

    5.4. outsourcing shall allow the Organisation to become more flexible and thus better able to adapt to changing opportunities or priorities;

    5.5. outsourcing shall enable the Organisation to reduce or have better control over operating costs;

    5.6. outsourcing shall reduce the need to invest capital funds in non-core functions, thus making capital funds available for core areas;

    5.7. the Organisation may have recourse to outsourcing because its does not have access to the required resources internally.

    III. Selection of external service providers and general principles governing contracts with external service providers

    6. External service providers shall be engaged to perform a clearly defined task in return for a specified fee.

    7. External service providers shall be engaged selected by the Secretary General in accordance with the relevant provisions of the Financial Regulations to the largest possible extent on a competitive basis bearing in mind the requirement of impartiality and objectivity.

    8. The most important criterion in selecting an external service provider shall be his/her competence to perform the task required.

    9. The Secretary General shall promote endeavour to ensure a fair geographical distribution of outsourcing contracts to external service providers.

    19.10. External service providers shall be required to carry out their work in an impartial and objective manner and to respect the applicable principles, rules and values of the Council of Europe,7 intellectual property rights and confidentiality.

    20.11 Contracts with external service providers shall respect the Financial Regulations of the Council of Europe and the general principles of sound management.

    9.12. Outsourcing contracts shall be signed by the Secretary General on behalf of the Council of Europe and by the external service providers concerned.

    IV. Terms of reference

    10.13. The contract shall clearly state the external service provider's terms of reference, including a detailed description of services to be rendered and the duration of the contract.

    11.14. The content of the terms of reference shall be determined by the Secretary General.

    V. Fees

    12.15 Fees shall take account, inter alia, of the complexity of the tasks involved, the quality of work required and existing market rates for similar services.

    VI. Supervision and reporting

    13.16. The Secretary General shall ensure that the work assigned to an external service provider has been carried out in accordance with the terms of the contract, in particular as regards the expected results and quality of work.

    14.17. In case of failure of the external service provider to perform the duties under the contract or if the external service provider's services do not reach a satisfactory level, the Secretary General shall be entitled to regard this as a breach of contract, to refuse payment of the fees and to demand payment of any penalties stipulated under the contract. Contracts shall provide for dispute-settlement procedures.

    15. 18. The Secretary General shall establish internal procedures for the collection and storing of all relevant information concerning outsourcing contracts.

    16.19. Contracts with external service providers shall expressly authorise the Secretary General to disclose any information that would be required by the Internal and External Auditor and the Committee of Ministers and the Parliamentary Assembly (as far as Parliamentary Assembly external service providers are concerned) in the discharge of their functions.

    17.20. On the request of the Budget Committee, the Secretary General shall provide them with information on outsourcing contracts.

    18.21. In fully justified and exceptional cases, specific confidentiality measures may be taken by the Secretary General in the interest of an external service provider's security. In these cases, the identity of an external service provider might not be disclosed.

    VII. General principles governing contracts with external service providers (merged into section III)

    19. External service providers shall be required to respect the applicable principles, rules and values of the Council of Europe,8 intellectual property rights and confidentiality.

    20. Contracts with external service providers shall respect the Financial Regulations of the Council of Europe and the general principles of sound management.

    VIII. Application of the Resolution

    21.22. The Secretary General shall ensure the application of the principles outlined in this Resolution by way of an instruction on outsourcing contracts to external service providers.

    IX.VIII. Entry into force

    22.23. This Resolution enters into force on … 2004.

Note 1 By “third party” is understood any organisation or institution, public or non-public, commercial or non-profitable, or any individual with whom the Council of Europe may enter into a service contract.
Note 2 Contracts with third parties to perform support tasks which are essentially recurrent are covered by Resolution … on outsourcing contracts.
Note 3 In particular Instruction 44 on the protection of human dignity and Instruction 47 on the use of the Council of Europe's information system.
Note 4 In particular Instruction 44 on the protection of human dignity and Instruction 47 on the use of the Council of Europe's information system.
Note 5 By “third party” is understood any organisation or institution, public or non-public, commercial or non-profitable, or any individual with whom the Council of Europe may enter into an outsourcing contract.
Note 6 Contracts with third parties to accomplish specialised tasks which are essentially non-recurrent ones that are not normally performed either by the staff members of the Secretariat of the Council of Europe or by a member of the relevant committee are covered by Resolution … on service contracts of consultants.
Note 7 In particular Instruction 44 on the protection of human dignity of the Council of Europe and Instruction 47 on the use of the Council of Europe's information system.
Note 8 In particular Instruction 44 on the protection of human dignity of the Council of Europe and Instruction 47 on the use of the Council of Europe's information system.


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