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The process by which Lead Partners of the 2014-20 European Structural and Investment Funds programmes can challenge decisions by the Managing Authority Approval Panel (MAAP) to decommit all or part of an operation.
The decommitment process is a last resort, and is only undertaken where the performance of the operation does not fulfil, or has not fulfilled, the legal commitments set out in the Offer of Grant Letter, and/or the Lead Partner (LP) has failed to meaningfully respond to multiple requests from the Managing Authority (MA) for relevant information.
The initial decision to decommit an operation is made by the relevant Growth Team with the evidence leading to that decision presented to MAAP for a final decision. This evidence will include the amount of unclaimed grant remaining against the operation, and takes into account the following information:
output targets - is it still feasible for the operation to demonstrate an acceptable level of achievement against its approved output targets?
claim history - have previous claims been diligently prepared, submitted in a timely fashion, supported by the required evidence, and queries been satisfactorily and quickly resolved to reduce error rates and allow expected payments to be made?
engagement with MA - have previous queries and interactions between the LP and the MA been clearly resolved, with agreement being reached completely and timeously?
The MAAP decision to decommit an operation, either in part or in full (and following Ministerial endorsement) will be communicated to the LP in writing, alongside this guidance.
Timescale for decommitment decision challenge
Should an LP wish to challenge a decommitment decision, such challenge must be lodged in writing within 10 working days from the date of the decommitment letter.
Any challenge and request for review must be addressed to Hilary Pearce, Head of the Managing Authority, and submitted via email to: Hilary.Pearce@gov.scot.
Grounds for a decommitment decision review
Only challenges where the LP can demonstrate that one or more of the issues below has occurred will be considered:
that the MA has misunderstood the LP’s confirmation that it can meet its obligations in relation to the approved outputs for the operation
that the MA did not take notice of relevant information in relation to the delayed submission of claims
that the MA has misunderstood any communications from the LP in relation to issues/concerns raised in relation to the operation
Decommitment decision challenge and review process
Any challenge received via the email address above will be allocated to a team leader, or similar, who is independent of the growth theme under which the challenge has been lodged. This person will be known as the 'review officer' and will be the decision maker, although they can consult with colleagues. For example, a challenge received for an operation under the Sustainable Growth theme would be considered by someone other than the team leader for the Sustainable Growth team.
The team leader for the growth theme which is the subject of the challenge will arrange for all information relevant to the operation to be made available to the 'review officer'.
The 'review officer' will arrange for the challenge and review information to be logged and stored in accordance with the MA’s Management and Control System.
The 'review officer' will carry out such checks and investigation as they believe necessary to fully explore and determine the outcome of the challenge. The 'review officer' will issue their findings to the LP making the appeal within 20 working days of receipt.
Follow-up of decommitment decision review process
Should the LP not be satisfied with the findings, it may further challenge the outcome of the review within 10 working days of the date of the findings email.
Any such further challenge should be submitted in writing to both the Head of the Managing Authority and the Director of Economic Development and should be sent to both of the following email addresses:
The Head of the Managing Authority will arrange for this further challenge and review information to be logged and stored in accordance with the MA’s Management and Control System.
The Head of the Managing Authority will forward the relevant materials to the Director for Economic Development. The Director will undertake a review of the challenge and reach a decision. This decision is final, subject of course to judicial review.
The Director for Economic Development will provide the LP with a written response to the challenge within 20 working days of receipt.
If LPs have any questions about this process please submit these to your Senior Portfolio and Compliance Manager.