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Some examples of problem solving success stories
The following case studies illustrate the PPN's cooperation on informal cross-border dispute-settlement, which takes place at the pre-contract award stage.
Removal of an unfair, post-award, delivery criterion
Corrections of errors in a call for tenders (open procedure)
Certification – Application of article 45 of directive 2004/18/ec
Misunderstandings by suppliers due to language barrier
Error of the contracting authority
Misunderstandings of the rules
Removal of an unfair, post-award, delivery criterion
A given Contracting Authority (CA) carried out a call for tenders for the supply of electrical equipment under the utilities directive. In the contract documents sent to a candidate from another Member State who had been selected, the CA's award criteria required that tenderers had to be represented in the CA's Member State for the previous two years. The candidate had no fixed representation there and considered it inappropriate to apply such a criterion, especially after the candidates had been selected. The candidate asked their national contact point for assistance to ask for the withdrawal of this requirement by the CA.
The contact point in the complainant's Member State approached their counterpart in the CA's Member State, who in turn immediately approached the CA. The CA admitted a lack of expert knowledge on the rules of the Utilities Directive. A meeting between the CA and their contact point was held to sort out the misunderstandings. An amendment to the contract documents was sent to all the selected candidates stating the withdrawal of the illegal criteria. Additionally, the deadline for the receipt of tenders was postponed by two weeks. With this, a complaint through the formal channels was avoided.
Corrections of errors in a call for tenders (open procedure)
A company complained to its national contact point about the requirements set out in an open procedure call for tenders under the Supplies Directive. The complainant explained that the Contracting Authority (CA) who was based in another Member State required all products to be delivered from the same factory during the entire 3 or 4 years contract period. The tender documents also failed to specify the exact quality required and degree of product completion, although the complainant believed that one of the potential suppliers did have access to this more detailed information.
The contact point agreed that requiring deliveries from the same factory during the whole contract period appeared to be discriminatory and that the specification must be complete in the tender notice to put all interested suppliers on an equal footing. He subsequently contacted his counterpart in the CA's Member State who agreed that some errors had been made in the call for tenders ; some additional errors were also identified in the process. The CA and his home contact point resolved these problems and a decision to launch a new call for tenders was made.
Misapplications of the rules
In a procurement procedure for specialist supplies, a German company approached its PPN contact point as the UK contracting authority had incorrectly completed the OJEU notice. The contract notice featured a genuine mistake, an incorrect deadline date which led to confusion. Interested parties could not understand whether they should submit an expression of interest or a completed tender. Following PPN intervention, all interested parties were informed of the required amendment to relevant deadlines, which gave the German plaintiff company an opportunity to bid.
Certification – Application of article 45 of directive 2004/18/ec
Three UK companies brought cases on other EU Member States. These cases were related to Article 45 of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. Article 45 deals with the personal criteria of the candidates or tenderers for qualitative selection. The contracting authorities in question had, in all cases, asked that certificates of judicial and fiscal legitimacy be produced by a single UK government department. Moreover, in one case where the contracting authority understood this was not possible, they requested that a confirmation be sent that such an authority did not exist in the UK.
However, the Directive does provide that a certification on oath by a notary is sufficient where such certificates do not cover all the conditions laid down in Article 45, and where the country in question does not issue such documents, as it is the case for the UK. The contracting authorities were clearly not familiar with this provision in the rules. Lack of attention of these details is not a grave mistake but it can become unfortunate when it leads to the disqualifications of bids.
In two cases the practice was rectified due to PPN intervention but regrettably in the other case, the tender was unfairly dismissed because the case was brought to the PPN's attention too late.
Misunderstandings by suppliers due to language barrier
A UK company complained about a Danish OJEU tender notice claiming that there had been a breach of the rules due to lack of transparency. A further investigation by the UK contact point showed that the detail of the tender was in fact fully described in the original Danish-language contract notice and that the lack of information in the official OJEU translation was responsible for generating the complaint. The situation was thus clarified and the UK supplier dropped his allegations. This case revealed that the CPV codes used upon which the succinct translations into English are based are not always helpful because they don't go into sufficient detail.
Error of the contracting authority
A Danish company complained to the Danish Competition Authority because the company had been excluded from participation in a call for tender. The contracting authority had informed the Danish company that the reason for the exclusion was the fact that the company had not provided a required documentation for paid taxes and duties.
The company had sent an official certificate issued by the Danish Commerce and Company Agency, which stated that the company had met its obligations concerning the payment of taxes and duties according to Danish law.
The Danish Competition Authority contacted the Norwegian procurement authority, and less than a week later got the response that the contracting authority had acknowledged the mistake and had invited the Danish company to tender. The contacting authority offered the Danish company the same conditions for participation (time-limit etc.) as was offered to the other suppliers.
Informations delivery
An engineering company wanted to apply for prequalification for a tender in another Member State. As part of the conditions for qualification all companies were requested to provide documentation that they fulfilled certain conditions described in a so-called HMS-certificate.
The company was not aware of how to fulfil these criteria, not being a resident in the Member State in question, and asked the contracting authority for more information. The contracting authority was not willing to provide this information by itself but actually recommended that the company went via the PPN contact point in its own Member State.
The PPN contact point was able to get the relevant information from the other Member State in just one day and could inform the company that a declaration would be sufficient. In this manner the engineering company was able to apply for prequalification in due time.
Misunderstandings of the rules
An English company complained to the PPN contact point in England about a procurement procedure for purchasing of an electronic monitoring system, conducted by a Danish contraction authority. The English PPN contact point forwarded the complaint to the Danish Competition Authority (DCA).
In the complainant's view the tender notice was not published correctly, as the English version of the notice did not appear in the TED-database. Furthermore the complainant found that the authority had infringed the procurement rules, as the tender material was only available in Danish, and the material contained a requirement that the tenders should be in compliance with a specific Danish legislation.
The DCA looked into the case and found no reasons to criticise the contracting authority. Firstly, the tender notice was published in the TED-database both in Danish and in English. Secondly, the procurement directive allows the contracting authorities to prepare the tender material in their own languages. Furthermore the procurement directive does not prevent the authorities to require the tenderers to comply with the national legislation related to the subject of the procedure.
The complainant agreed with the DCA's assessment of these points. At the same time the complainant pointed out a new problem. In the complainant's view the time limit for submitting a request for participation was only 29 days calculated from the date of the publication of the tender notice. Thus the time limit was shorter that the minimum time limit in the procurement directive.
The DCA informed the complainant that according to the procurement directive the time limit begins from the date of the dispatch, and not from the date of the publication of the notice in TED. Thus the time limit given from the contracting authority was 39 days. The DCA found therefore that there had been no violation of the rules on minimum time limits.
The complainant acknowledged that the last point of the complaint was based on a misunderstanding of the rules. The complainant chose therefore not to pursue the case further.