Article 19 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.