EU Public Procurement Law: Lesson 8 - The procurement
procedures
Simon Evers Kalsmose-Hjelmborg (seh@bechbruun.com)
Chapters V - VI of the Directive - The procedures
• Chapters V - VI contain the following provisions on procedures in
Articles 28 - 43:
•
Article 28:
Use of open, restricted and negotiated
procedures and of competitive dialogue.
•
Article 29:
Competitive dialogue.
•
Article 30:
Cases justifying use of the negotiated procedure
with prior publication of a contract notice.
•
Article 31:
Cases justifying use of the negotiated procedure
without publication of a contract notice.
2
Chapters V - VI of the Directive - The procedures
• Chapters V - VI contain the following provisions on procedures in
Articles 28 - 43:
•
Article 32:
Framework agreements.
•
Article 33:
Dynamic purchasing systems.
•
Article 34:
Public works contracts: particular rules on
subsidised housing schemes.
•
Article 35:
Notices.
•
Article 36:
Form and manner of publication of notices.
•
Article 37:
Non-mandatory publication.
3
Chapters V - VI of the Directive - The procedures
• Chapters V - VI contain the following provisions on procedures in
Articles 28 - 43:
•
Article 38:
Time-limits for receipt of requests to participate
and for receipt of tenders.
•
Article 39:
Open procedures: Specifications, additional
documents and information.
•
Article 40:
Invitations to submit a tender, participate in the
dialogue or negotiate.
•
Article 41:
Informing candidates and tenderers.
•
Article 42:
Rules applicable to communication.
•
Article 43:
Content of reports.
4
Chapter V of the Directive - The procedures
• Main rule of Article 28:
• The following procedures may always be applied:
•
•
Open procedure.
Restricted procedure.
• The other types of procedure are exemption procedures presupposing
the existence of specific (express) circumstances:
•
•
Procedure by means of competitive dialogue.
Negotiated procedure:
•
with publication of contract notice.
•
without publication of contract notice.
5
Chapter V of the Directive
- The procedures
+ negotiations
• Open procedure
Contract notice
published in OJ
Art. 35(2)
Time-limit for
tenders
 negotiations
Award
decision
Art. 38(2)
Conclusion
of contract
Report to
the Comm.
Art. 43
Min. 52 days
Art. 39
Art. 41
Documents to be
sent within 6 days
Informing of
tenderers
6
Chapter V of the Directive
+ negotiations
- The procedures
 negotiations
• Restricted procedure
Contract notice
published in OJ
Art. 35(2)
Award
decision
Time-limit for
requests
Conclusion
of contract
Time-limit for
tenders
Art. 38(3)
Art. 38(3)
Min. 37 days
Min. 40 days
Report to
the Comm.
Art. 43
Art. 40
Art. 41
Invitation to
submit tenders information
requirements
Informing of
candidates/
tenderers
7
Chapter V of the Directive - The
procedures
• Framework agreements/contracts
•
Article 32 of the Public Procurement Directive
•
Article 1(5) of the Public Procurement Directive
•
Introductory consideration of article 11 of the Public Procurement
Directive
•
Explanatory note – Framework Agreements – Classic Directive
(January 2006)
8
Framework agreements
•
Definition
• “A "framework agreement" is an agreement between one or more
contracting authorities and one or more economic operators, the
purpose of which is to establish the terms governing contracts to be
awarded during a given period, in particular with regard to price and,
where appropriate, the quantity envisaged”, cf. Art. 1(5).
•
•
*
Framework contracts*
• Establish all the terms
Framework agreements*
• Do not establish all the terms
The terms framework contract and framework agreement stricto sensu are used only for
explanatory purposes. Please note that the use of this terminology is not obligatory for
implementing the Directive.
9
Framework agreements
•
General conditions:
•
•
•
•
The procedures of the directives must be supervised in all phases
until the award of the contract (open, restricted or negotiated
procedures (restricted procedure))
Note that framework agreement(s) must be awarded to one or
minimum 3 entity/entities
The party/parties of the framework agreements is/are selected on
the basis of the Directive’s award criteria
The duration of framework agreements and contracts based on
framework agreements is limited to 4 years unless exceptional cases
exist
10
Framework agreements
•
General conditions:
•
•
•
The standard terms are not to be amended considerably when
awarding the individual contract
No other entity or authority can be involved when awarding the
contract – a closed system
Notice regarding award of the contract must be sent to the
Commission no later than 48 days after the conclusion of the
framework agreement
• But, there are no notice obligations regarding award of individual
contracts
11
Framework agreements stricto
sensu
•
General conditions (framework agreements stricto sensu - all terms are not
established):
•
•
•
•
The Directive does not state which terms are not set out in the agreement
and thus not which terms are to be established later
In order to consider future development of the products, it is essential to
establish the terms of the technical specifications
It is essential to establish the products and the quantities
• These cannot be substantially amended during the term of the framework
agreement
It is positively recommended to list the established specifications and terms
in a sub clause regarding “contract conditions”
12
Framework agreements
•
Four types:
•
•
•
•
Individual framework contract with one entity
Individual framework agreement stricto sensu with one entity
Parallel framework contracts with several entities
Parallel framework agreements stricto sensu with several entities
13
Individual framework contract with one entity
Traditional tender procedure
÷ completion of offer
Entering into
the framework
agreement
•
•
•
Entering into
the contract
The supplier cannot be consulted in writing concerning completion when
entering into the contract
Simple placing of orders under the terms of the framework contract
Contractual liability to deliver for the supplier
14
Individual framework agreement stricto sensu
with one entity
Traditional tender procedure
+ completion of offer
Entering into
the framework
agreement
•
•
•
Entering into
the contract
The supplier can be consulted in writing concerning completion when
entering into the contract
Entering into the contract is based on the terms of the framework
agreement in combination of the terms offered by the supplier and which
do not concern the terms of the framework agreement
No contractual liability to deliver for the supplier
15
Individual framework contract with several entities
Traditional tender procedure
÷ completion of offer
Entering into
minimum 3
framework
agreements
•
•
•
•
Entering into
the contract
The supplier cannot be consulted in writing concerning completion when
entering into the contract
Simple placing of orders under the terms of the framework agreement
Contractual liability to deliver for the selected supplier(s)
Selection of supplier?
• Article 2: Non-discrimination, transparency
16
Individual framework agreement stricto sensu
with several entities
Traditional tender procedure
New competition
Entering into
framework
agreements
•
•
•
•
•
•
Entering into
the contract
New competition procedure when entering into the contract
All relevant entities are contacted in writing
A tender deadline is made
The offers are made in writing/handled with confidence
The contract is awarded on the basis of the award criterion determined in
the general conditions of the framework agreement
No contractual liability to submission of tender/deliver for the supplier
17
+ negotiations (Art. 29)
Chapter V of the Directive
 negotiations
- The procedures
Award
decision
• Competitive dialogue
Contract notice
published in OJ
Time-limit for
requests
Art. 38(3)
Art. 35(2)
Min. 37 days
Report to
the Comm.
Conclusion
of contract
Time-limit for
tenders
Art. 38(3)
Min. 40 days
Art. 29
Negotiations
Art. 40
Invitation to submit
tenders - information
requirements
Art. 43
Art. 41
Informing of
candidates/
tenderers
18
Chapter V of the Directive - The procedures
•
Competitive dialogue – Art. 29 – conditions.
•
"In the case of particularly complex contracts …".
•
"Award criterion [is] the most economically advantageous tender".
•
"Contracting authorities shall publish a contract notice setting out their needs and
requirements".
•
"During the dialogue, contracting authorities shall ensure equality of treatment among all
tenderers. In particular, they shall not provide information in a discriminatory manner
which may give some tenderers an advantage over others".
•
Flexibility with respect to determining the procedure for the dialogue, but requirement of
prior publication thereof in the contract notice.
•
After submission of tenders, negotiations are prohibited (6)+(7).
19
Chapter V of the Directive
+ negotiations (Art. 30)
- The procedures
•
 negotiations
Award
decision
Negotiated procedure
•
with prior publication of notice
Contract notice
published in OJ
Art. 35(2)
Time-limit for
requests
Report to
the Comm.
Conclusion
of contract
Time-limit for
tenders
Art. 38(3)
Art. 38(3)
Art. 30
Min. 37 days
Min. 40 days
Negotiations
Art. 40
Art. 41
Invitation to submit
tenders - information
requirements
Informing of
candidates/
tenderers
Art. 43
20
Chapter V of the Directive - The procedures
•
Negotiated procedure with publication of notice - Art. 30
•
This procedure may be applied in the following cases:
•
In the event of irregular tenders or the submission of tenders which are unacceptable
in response to an open or restricted procedure or a competitive dialogue,
•
When the nature of the works, supplies, or services or the risks attaching thereto do
not permit prior overall pricing,
•
Where the services to be provided cannot be established with sufficient precision, and
•
Public works contracts which are performed solely for purposes of research, testing or
development and not with the aim of ensuring profitability or recovering research and
development costs.
21
Chapter V of the Directive
- The procedures
•
+ negotiations (Art. 31)
 negotiations
Award
decision
Negotiated procedure
•
without prior publication of notice
Contract notice
published in OJ
Time-limit for
requests
Time-limit for
tenders
Report to
the Comm.
Conclusion
of contract
Art. 31
Art. 43
Negotiations
No procedure requirements - or time-limits. NB! Telaustria…!!
22
Chapter V of the Directive - The procedures
•
Negotiated procedure without publication - Art. 31
•
This procedure may be applied for all contracts in the following cases (1):
•
When no tenders or no suitable tenders or no applications have been submitted in
response to an open procedure or a restricted procedure provided that the initial
conditions of contract are not substantially altered,
•
When for technical or artistic reasons or for reasons connected with the protection of
exclusive rights, the contract may be awarded only to a particular economic operator,
and
•
When it is strictly necessary when for reasons of extreme urgency brought about by
events unforeseeable by the contracting authorities, the time-limit for the open
restricted or negotiated procedures cannot be complied with- must not in any event be
attributable to the contracting authority.
23
Chapter V of the Directive - The procedures
•
Negotiated procedure without publication – Art. 31
•
This procedure may be applied for public supply contracts in the following
cases (2):
•
When the products involved are manufactured purely for the purpose of
research, experimentation, study or development,
•
For additional deliveries by the original supplier which are intended
either as a partial replacement of normal supplies or installations or as
the extension of existing supplies or installations,
•
For supplies quoted and purchased on a commodity market, and
•
For the purchase of supplies on particularly advantageous terms from
either a supplier which is definitively winding up its business activities or
24
the receivers or liquidators etc.
Chapter V of the Directive - The procedures
•
Negotiated procedure without publication – Art. 31
•
This procedure may be applied for public service contracts in the following
cases (3):
•
"When the contract concerned follows a design contest and must, under
the applicable rules, be awarded to the successful candidate or to one of
the successful candidates".
25
Chapter V of the Directive - The procedures
•
Negotiated procedure without publication – Art. 31
•
This procedure may be applied for public works and service contracts in the
following cases (4):
•
Subject to the fulfilment of certain conditions "for additional works or
services not included in the project initially considered or in the original
contract but which have, through unforeseen circumstances, become
necessary for the performance of the works or services described
therein".
•
Subject to the fulfilment of certain conditions "for new works or services
consisting in the repetition of similar works or services entrusted to the
economic operator to whom the same contracting authorities awarded
an original contract".
26
Chapter V of the Directive - The
procedures
•
•
•
•
•
•
Dynamic purchasing system, art. 1 (6) and art. 52
In addition to the reviewed public procurement procedures, a “dynamic
list” of known and potential suppliers can be established
The contracting authority must publish a contract notice making it clear
that a dynamic purchasing system is involved – the award criterion must
be determined
The contract documents must include: the nature of the purchase,
necessary information on the system, technical information regarding
connection, etc.
The dynamic purchasing systems must be renewed every four years
All tenderers who fulfil the selection criteria and have submitted a
indicative tender in compliance with the contract documents must be
admitted to the system through the entire period
27
Chapter V of the Directive - The
procedures
Contract notice
Establisment and maintenance of ”dynamic list”
Simple procurement regarding specific purchase
Invitation to all suppliers
on the list
Contract
28
Chapter V of the Directive - The
procedures
•
Specific purchases under the dynamic purchasing system
•
The procedure of entering into specific contracts:
1. A simplified notice must be published in the Official Journal of the
European Union with the request to all to give an indicative tender
within 15 days (from the forwarding date)
2. All replies will be evaluated and the suppliers will be listed
3. All listed and newly listed suppliers are all requested to make a final
tender within a reasonable time limit
4. The contract is awarded under the award criteria set out in the
contract notice for the establishment of the dynamic purchasing
system
29
Chapter V of the Directive - The
procedures
•
Electronic auction, art. 54 and art. 1 (7)
•
The directive states that electronic auctions may be used in addition to
the tender procedure (following the tender procedure)
Conditions:
• Open, restricted or negotiated procedures (or parallel framework
agreements or dynamic purchasing systems)
• The contract specifications can be established with precision
• The contract notice states that this type of auction is being used
• The action process must be described
• Only entities that have made acceptable tenders are invited to
participate
•
30
Chapter V of the Directive - The
procedures
Traditional procurement
procedure
Electronic auction(s)
First tender evaluation
Contract
Invitations to tenderers who
have made acceptable tenders
31
Chapter V of the Directive - The
procedures
•
Electronic auction
•
The object of the auction (the competition):
• Price (the “lowest price”)
• Price and/or the new values of other features (the “economically
advantageous tender”)
• Several auction phases can be made
• The auction must be electronic - a mathematical formula to determine
automatic rerankings on the basis of the new prices and/or new
values
• The contracting authority must instantaneously communicate to all
the tenderers at least sufficient information to enable them to
ascertain their relative rankings at any moment
The contracting authority may at any time announce the number of the
remaining participants but not the identity
•
32
Types of public procurement
procedures - combinations
Electronic
auction
Dynamic
purchases
Open
procedure
Framework
agreement
with
competition
Restricted
procedure
Certain
Negotiated
procedures
Competitive
dialogue
procedure
33
Chapter V of the Directive - The procedures
•
Prior information notices (Art. 35).
•
(May be) published for estimated value of purchases throughout the
following year (12 months).
•
Are not binding, but serves to "prepare" the market for contracts likely to be
awarded.
•
The time-limits may be shortened following publication of such notice.
•
Non-mandatory publication (Art. 37).
•
Only allows "contracting authorities" access to the system on a voluntary
basis.
34
Chapter V of the Directive - The procedures
• Time-limits (arts 38+39).
• Time-limits are often shortened where the contract notices are published
by electronic means etc.
35
Chapter V of the Directive - The procedures
- Discontinuance of procedure
• Kauppatalo – C-244/02:
•
•
Facts
The Finnish town of Imatra invited tenders from 20 electricity companies for
an electricity supply contract for the period 1 July 2000 - 30 June 2001.
• The "lowest price" was the award criterion.
• The tender submitted by Hansel was of the lowest price.
•
Subsequently, Imatra realised that changing the supplier would give
rise to additional costs which had not been taken into consideration and
decided that the tender submitted by its supplier at that time, Imatran
Seudun Sähkö Oy, was overall the most economically advantageous
tender.
36
Chapter V of the Directive - The procedures
- Discontinuance of procedure
• Kauppatalo – C-244/02:
•
Facts
•
In that light, the town of Imatra discontinued the award procedure initiated.
•
The town of Imatra then published a new invitation to tender in which,
following a more comprehensive assessment of the overall cost of the
contract, the estimated amount of electricity required was now stated
to be 25 GWh per year instead of the 16 GWh per year in order to
ensure that the best tender was also overall the most economically
advantageous.
•
In the new procedure, the best tender was submitted by
Lappeenrannan Energia Oy to which the contract was awarded.
37
Chapter V of the Directive - The procedures
- Discontinuance of procedure
•
Kauppatalo – C-244/02:
•
Hansel – arguments
•
Hansel lodged an appeal against the decision to discontinue the first procedure
arguing:
•
that the City of Imatra did not have any valid reason to reject a tender satisfying
the required criteria and to discontinue the procedure for the award of the
contract,
•
that the organisation of a new procedure changing the award critierion was
unlawful, and
•
that the new procedure amounted to unlawful bargaining tactics. In its view, the
City of Imatra had sought by way of the first invitation to tender to obtain
information on prices and had, subsequently, commenced a new procedure in
order to negotiate the price of the tenders submitted using the information which
had become public during the first invitation to tender.
38
Chapter V of the Directive - The procedures
- Discontinuance of procedure
• Kauppatalo - C-244/02:
•
Question referred to the ECJ:
•
Is Directive 93/36 to be interpreted "as meaning that a contracting
authority which has commenced a procedure for the award of a contract
on the basis of the lowest price may discontinue the procedure without
awarding a contract when it discovers after examining and comparing
the tenders that because of errors committed by itself in its preliminary
assessment, the content of the invitation to tender makes it impossible
for it to accept the most economically advantageous tender?" (p. 24).
39
Chapter V of the Directive - The procedures
- Discontinuance of procedure
• Kauppatalo – C-244/02:
•
Answer by the ECJ:
•
"… the answer … must be that Directive 93/36 is to be interpreted as
meaning that a contracting authority which has commenced a procedure for
the award of a contract on the basis of the lowest price may discontinue the
procedure, without awarding a contract, when it discovers after examining
and comparing the tenders that, because of errors committed by itself in its
preliminary assessment, the content of the invitation to tender makes it
impossible for it to accept the most economically advantageous tender,
provided that, when it adopts such a decision, it complies with the
fundamental rules of Community law on public procurement such as the
principle of equal treatment.” (p. 36)
40
Chapter V of the Directive - The procedures
•
•
•
•
Commission vs. France – C-225/98:
Facts
Departement Pas-de Calais had commenced a tendering procedure (open
procedure) for a public works contract relating to the construction of a
school
The Commission forwarded a formal notice listing a number of complaints:
•
•
•
•
•
•
The time-limit for the receipt of tenders was less than 52 days,
Discriminatory description of the lots,
Discriminatory minimum standards,
Criteria for the award which did not comply with the Directive,
Improper award of the contract, and
Failure to inform an eliminated tenderer of the reasons for rejection
of its tender.
41
Chapter V of the Directive - The procedures
•
•
Commission vs. France – C-225/98:
Facts
•
Meanwhile, the Nord-Pas-de-Calais Region had published a series of 14
identical contract notices (restricted procedure) relating to the
completion of contracts of modernisation and maintenance works over a
period of 10 years (known as the "Secondary School Plan").
•
The notices stated that the tenders would be assessed by taking account
of various award criteria, including:
•
The "quality/price ratio of the technical response and the services",
•
The "time-limit for completion of the works of construction and
renovation excluding maintenance", and
•
An "additional criterion relating to employment".
42
Chapter V of the Directive - The procedures
•
•
Commission vs. France – C-225/98:
Facts
•
Then, the Commission brought the matter before the ECJ based on eight
complaints relating to:
1.
2.
3.
4.
5.
6.
7.
8.
The prior information procedure,
The additional criterion relating to employment,
The number of candidates selected,
The method known as "award by reference to the French Code of
Public Procurement",
The mode of designating the lots,
The minimum standards for participation,
The procedure of information on contract awards, and
The failure to forward the written reports.
43
Chapter V of the Directive - The procedures
•
•
•
•
•
Commission vs. France – C-225/98:
ECJ – re 1 – prior information notice.
"… the purpose of the rules on advertising laid down in Directive 93/37,
including publication of the prior information notice, is to inform all potential
tenderers at the Community level in good time about the main points of a
contract in order that they may submit their tender within the time-limits"
(p. 35).
"… the time-limits for the receipt of tenders may not be less than 52 days
from the date of dispatch of the contract notice in respect of open
procedures and 40 days from the date of dispatch of the written invitation in
respect of restricted procedures, but that they may be reduced, respectively,
to 36 and 26 days only where the contracting authorities have published the
prior information notice"(p. 32).
44
Chapter V of the Directive - The procedures
• Commission vs. France – C-225/98:
•
ECJ – re 1 – prior information notice
•
"… a prior information notice is compulsory only where the contracting
authorities exercise their option to reduce the time-limits for the receipt of
tenders" (p. 38).
•
"… [as] it is clear … that the contracting authorities in question did not
reduce the time-limits for the receipt of tenders in relation to the disputed
contracts, it must be concluded that those contracting authorities were not
in breach of their obligations under [the] Directives, as regards the prior
information procedure" (p. 44).
45
Chapter V of the Directive - The procedures
• Commission vs. France – C-225/98:
•
ECJ – re 2 – additional criterion relating to employment.
•
Commission: "… in expressly setting forth as an award criterion in a number
of contract notices a condition relating to employment linked to a local
project to combat unemployment, the French authorities have infringed
Article 30 of Directive 93/37" (p. 46).
•
France: "… the award criterion … does not constitute a primary criterion,
such as those referred to in Article 29 of Directive 71/305, the purpose of
which is to make it possible to determine which is the most advantageous
tender, but a secondary criterion which is not decisive" (p. 47).
46
Chapter V of the Directive - The procedures
•
Commission vs. France – C-225/98:
•
ECJ– re 2 – additional criterion relating to employment.
•
"[Art. 30] does not preclude all possibility for the contracting authorities to use as a
criterion a condition linked to the campaign against unemployment provided that that
condition is consistent with all the fundamental principles of Community law, in particular
the principle of non-discrimination" (p. 50).
•
Seeing that the Commission "does not claim that the criterion linked to the campaign
against unemployment is inconsistent with the fundamental principles of Community
law, in particular the principle of non-discrimination, or that it was not advertised in the
contract notice … the Commission's complaint relating to the additional award criterion
linked to the campaign against unemployment must be rejected" (p. 53 - 54).
47
Chapter V of the Directive - The procedures
• Commission vs. France – C-225/98:
•
ECJ – re 3 – the number of candidates selected.
•
In the contract notices, it was stated that "the maximum number of
candidates which may be invited to submit a tender is 5" (p. 62).
•
This wording "implies that it is the maximum number of candidates invited
to tender for the contracts in question which was fixed at five. It follows
that, on the basis of the disputed contract notices, a number of candidates
below five was regarded as acceptable" (p. 62).
•
"… the French Republic has failed to fulfil its obligations under [the
Directive]" (p. 63).
48
Chapter V of the Directive - The procedures
•
Commission vs. France – C-225/98:
•
ECJ – re 4 – award by reference to "the French Code on Public
Procurement".
•
Commission: "… to indicate the award criteria, to the method known as
"award by reference to the French Code des Marchés Publics" which it claims
is contrary to [the Directive]. By referring generally to various provisions of
the French Code des Marchés Publics, the abovementioned contract notices
do not satisfy the requirement as to advertising as stated in Beentjes" (p.
64).
•
"… where the authorities awarding the contract do not take the lowest price
as the sole criterion for awarding the contract but have regard to various
criteria with a view to awarding the contract to the most economically
advantageous tender, they are required to state these criteria in the
contract notice or the contract documents. Consequently, a general
49
Chapter V of the Directive - The procedures
•
Commission vs. France – C-225/98:
•
ECJ – re 5 – the mode of designating the lots.
•
Commission: "Many of the contract notices examined refer under the heading "Works.
Designation of lots and qualifications to the classifications" of French professional
organisations in particular the OPQCB and Qualibat - Qualifélec" (p. 76).
•
•
•
""Qualibat chauffage 5312" corresponds to a design office of approved technical
expertise in environmental engineering with at least four years' practical experience
and at Level 6 in the 'Convention Collective ETAM des Bâtiment et Travaux Publics".
ECJ: "… the technical specifications selected are so specific and abstruse that, as a rule,
only French candidates are able immediately to discern their relevance" (p. 81).
[The specifications] directly discriminate and thus constitute a restriction for the freedom to
provide services in accordance with the Treaty.” (p. 83)
50
Chapter V of the Directive - The procedures
• Commission vs. France – C-225/98:
•
ECJ – re 6 – minimum standards for participation.
•
"[under] the minimum standards for participation specified under heading
10 in a certain number of contract notices [it] states unambiguously "for the
designer: proof of registration with the Ordre des Architectes".
Consequently, the Département du Nord has failed to fulfil its obligations
under Article 59 of the Treaty by imposing restrictions on Community
architects' freedom to provide services" (p. 85).
•
"… the French Republic has failed in its obligations under Article 59 of the
Treaty and Article 26 of [the Directive]" (p. 90).
51
Chapter V of the Directive - The procedures
• Commission vs. France – C-225/98:
•
ECJ – re 7+8 – procedure of information on contract awards + the failure to
communicate the written reports.
•
Commission: "… the Nord-Pas-de-Calais Region failed to fulfil the obligation
to publish information on contract awards as provided for in Article 12(5) of
Directive 71/305 and 11(5) of Directive 93/37" (p. 91).
•
ECJ: "… the French Republic has failed in its obligations under [the
Directive]" (p. 94).
52
Chapter V of the Directive - The procedures
- exemptions
•
•
•
•
•
Commission vs. Italy – C-385/02:
Fact:
Magistrato del Po de Parma entered into the following collateral
contracts using negotiated procedure without prior publication of notice:
• Completion of the construction of an overflow basin for flood waters
of the Parma watercourse in the Marano area (Parma commune)
• Development and completion of an overflow basin for flood waters of
Enza
• Retention of flood waters of the Terdoppios watercourse south-west of
Cerano
The price of this work was app. ITL 37, 21 and 19.5 billion
The original contracts regarding this work were concluded in 1982 (Enza)
and 1988 (Parma and Terdoppio)
53
Chapter V of the Directive - The procedures
- exemptions
•
•
•
Commission vs. Italy – C-385/02:
Arguments
Italy claimed that the contracts could be made according to one of the
following exemptions:
1. “When, for technical or artistic reasons, or for reasons connected with
the protection of exclusive rights, the contract may be awarded only to a
particular economic operator” (article 31(1)(b))
2. “Insofar as is strictly necessary when, for reasons of extreme urgency
brought about by events unforeseeable by the contracting authorities in
question, the time limit for the open, restricted or negotiated procedures
with publication of a contract notice as referred to in Article 30 cannot be
complied with. The circumstances invoked to justify extreme urgency
must not in any event be attributable to the contracting authority”
(article 31(1)(c))
54
Chapter V of the Directive - The procedures
- exemptions
•
•
•
Commission vs. Italy – C-385/02:
Arguments
Italy claimed that the contracts could be made according to one of the
following exemptions:
3. “For new works or services consisting in the repetition of similar works
or services entrusted to the economic operator to whom the same
contracting authorities awarded an original contract, provided that such
works or services are in conformity with a basic project for which the
original contract was awarded according to the open or restricted
procedure. As soon as the first project is put up for tender, the possible
use of this procedure shall be disclosed and the total estimated cost of
subsequent works or services shall be taken into consideration by the
contracting authorities when they apply the provisions of Article 7. This
procedure may be used only during the three years following the
conclusion of the original contract.” (article 31(4)(b))
55
Chapter V of the Directive - The procedures
- exemptions
•
•
•
•
•
•
Commission vs. Italy – C-385/02:
ECJ:
Re 1: Italy did not prove that technical reasons made an award of an
additional contract necessary for the existing contractor
Re 2: The planned division of the stages of the project did not make it
strictly necessary to use the procurement procedure as this division of
the procedure was actually planned
Re 3: This exemption did not apply as the three years condition, which
is calculated from the conclusion date of the contract, was not fulfilled
Italy violated the directive by not providing the projects according to
the main rules
56
Chapter V of the Directive - The procedures
- exemptions
•
•
•
Commission vs. Germany – C-20+28/01:
Facts:
The municipality Bockhorn in Niedersachsen had – on the basis of a
negotiated procedure without prior notification in the Official Journal –
concluded a contract with the company EWE regarding collection of its waste
water for a 30-year period.
•
The city of Braunschweig in Niedersachsen had - on the basis of a
negotiated procedure without prior notification in the Official Journal –
concluded a contract with the company BKB regarding residual waste
disposal by thermal processing for a 30-year period.
57
Chapter V of the Directive - The procedures
- exemptions
•
•
•
Commission vs. Germany – C-20+28/01:
Arguments:
Commission:
•
In the Bockhorn-Case (C-20/01), the Commission argues that the
Directive applied to the contract concerned which should have been the
subject of an invitation to tender in accordance with the provisions of
the directive.
•
In the Braunschweig-Case (C-28/01), the Commission submits that the
contract in question also falls within the scope of the Directive. In its
submission, the criteria allowing a negotiated procedure to be used
without publication of a prior contract notice were not met. Neither the
location of the undertaking selected, on account of its proximity to the
place where the services were to be provided, nor the fact that award of
58
the contract was urgent, provides a basis for the application of that
Chapter V of the Directive - The procedures
- exemptions
•
•
•
•
Commission vs. Germany – C-20+28/01:
Arguments:
Germany (Bockhorn) – no material arguments.
Germany (Braunschweig):
•
The Directive applies, but Braunschweig relied on the derogation in
Article 11(3) thereof which released them from their obligation to
publish a contract notice and allowed them to award the contract by a
negotiated procedure.
•
"… the conditions on which Article 11(3)(b) of Directive 92/50 applied
were met since for technical reasons thermal treatment of waste could
be entrusted only to BKB. It had been an essential criterion of the award
of the contract that the incineration facilities were close to the City of
Braunschweig in order to avoid transport over longer distances".
59
Chapter V of the Directive - The procedures
- exemptions
•
•
•
Commission vs. Germany – C-20+28/01:
Arguments:
Germany (Braunschweig):
•
"… only BKB was in a position to satisfy the quite lawfully selected
criterion that the waste disposal facility should be close to the
relevant region. The criterion was not automatically discriminatory
since it was not impossible that undertakings established in other
Member States would be able to meet the requirement".
•
"In general, a contracting authority is entitled to take account of
environmental criteria in its considerations relating to the award of a
public contract when it determines which type of service it is
proposing to acquire".
60
Chapter V of the Directive - The procedures
- exemptions
•
•
•
Commission vs. Germany – C-20+28/01:
Arguments:
Germany (Braunschweig):
•
The exemption in article 31(1)(b) …”when, for technical or artistic
reasons, or for reasons connected with the protection of exclusive
rights, the contract may be awarded only to a particular economic
operator” was used as BKB was the only operator having a thermal
system in the region
61
Chapter V of the Directive - The procedures
- exemptions
•
Commission vs. Germany – C-20+28/01:
•
ECJ:
•
Therefore, it is not impossible that a technical reason relating to the
protection of the environment may be taken into account in an assessment
of whether the contract at issue may be awarded to a given supplier.
•
However, the procedure used where there is a technical reason of that kind
must comply with the fundamental principles of Community law […].
•
The risk of a breach of the principle of non-discrimination is particularly high
where a contracting authority decides not to put a particular contract out to
tender.
62
Chapter V of the Directive - The procedures
- exemptions
•
In this instance, the Court notes:
•
First, that in the absence of any evidence to that effect the choice of thermal
waste treatment cannot be regarded as a technical reason substantiating the
claim that the contract could be awarded to only one particular supplier.
•
Second, the German Government's submission that the proximity of the waste
disposal facility is a necessary consequence of the City of Braunschweig's
decision that residual waste should be treated thermally is not borne out by any
evidence and cannot therefore be regarded as a technical reason of that kind.
More specifically, the German Government has not shown that the transport of
waste over a greater distance would necessarily constitute a danger to the
environment or to public health.
•
Third, the fact that a particular supplier is close to the local authority's area can
likewise not amount, on its own, to a technical reason for the purpose of Article
11(3)(b) of Directive 92/50".
•
It follows that Germany has violated its obligations under the Directive.
63