Public procurement notice: Voluntary Ex Ante Transparency Notice
Published: 2016-12-06
Buyer: Energistyrelsen
Country: DK
Region: Vestjylland
Contract type: Works
Procedure: Negotiated without a prior call for competition
CPV classification: 31121310 | 31121320 | 31121330 | 31121340 | 45000000: Construction work
Award criteria: Lowest price

Technical requirements: In March 2012, the Danish Government entered into an energy agreement with all but 1 of the political parties in the Danish Parliament. By the energy agreement a large majority of the Danish Parliament has decided to initiate a tendering process covering the installation of offshore wind turbines totaling 450 MW in nearshore sites. A prior information notice was published in the Official Journal of the European Union on 28.9.2013 (2013/S 189-325140).
In July 2014 the Danish Government entered into a political agreement, Agreement on the withdrawel of FSA etc. and modification of the PSO of 14 July 2014, with a majority of the political parties in the Danish Parliament. As a consequence the nearshore wind farm tender was reduced from 450 MW to 350 MW and a contract notice was published in the Official Journal of the European Union on 25.02.2015 (2015/S 039-065965). The tender for the construction and operation of a total capacity of up to 350 MW is a multisite tender. This means that 6 areas has been offered for tender at the same time and that projects within these sites have been competing against each other. The contract is awarded as a concession contract following a negotiated procedure and the concessionaire shall build and operate the wind farm and the export cable to the grid connection point on the shore.
However as part of the procedure, 1) one site — Sejerø Bugt — was withdrawn as an option for an offshore wind farm in the nearshore tender. Furthermore, it was decided to postpone the deadline for final tender to 1.9.2016 in order to give sufficient time to adjust to this change. The reasoning behind the change was that the consultants responsible for the environmental impact assessments concluded that it seems unfeasible that a realistic project will remain below the critical threshold for effects on the common scoter. All prequalified bidders were simultaneously informed of this change on 16.4.2016. That withdrawal of sites based on the results of the environmental impact assessment could take place was stated in the preliminary tender conditions, which was published on 4.5.2015 prior to the deadline for application for prequalification (26.5.2015). Furthermore 2) the initial deadline for connection to the collective grid of the offshore wind farm (at least 95 % of the wind farm's capacity) by no later than 1.1.2020 was postponed to 31.12.2020. This was done as a result of the negotiations, with the intention of providing the concessionaire with sufficient time during summer to undertake construction work sensible to weather conditions. From the outset no sanctions for late connection to the collective grid of the offshore wind farm would apply prior to 1.1.2021 according to the preliminary tender conditions published on 4.5.2015.
Following this, Energistyrelsen has now finalised the evaluation of the tenders, and has identified the winning bid and intends to sign the concessions agreement with the winning bidder. However, Energistyrelsen does not consider the tendering process to be concluded until the concessions contract has been signed.
As stated above, the terms of the concessions agreement have been subject to a call for competition. During the procedure, amendments were made to the tender conditions as one of initially 6 sites was withdrawn from the tender and the deadline for connection of the offshore windfarm to the collective grid was postponed by 12 month. Energistyrelsen considers that the withdrawal of one site out of six possible sites and the postponement of the deadline for connection to the collective grid do not constitute a substantial change. Energistyrelsen bases this on several factors but most notably (not in order of importance): 1) the amendments were carried out as part of a negotiated procedure and the preliminary tender conditions published prior to the deadline for application for prequalification explicitly allowed for the withdrawal of one or more sites and attached no sanctions to the deadline for grid connection until 1.1.2021, 2) the consequences of the amendments have been subject to competition from all the prequalified bidders (i.e. all bidders have submitted bids based on the reduced number of sites and the extended deadline for grid connection), 3) Energistyrelsen considers that no other/new economic operators could be expected to have taken part in the procedure had the reduced number of possible sites or the extended deadline for grid connection been included in the call for competition (the Contract Notice), 4) the reduction of sites was the result of the environmental impact assessment as foreseen in the preliminary tender conditions which was available to all interested parties well before the deadline for application for prequalification as was the fact that no sanctions for delay with the grid connection would apply prior to 1.1.2021. The amendments are therefore not considered to be of a material nature which exceeds the amendments possible under a negotiated procedure.
Note to Section IV.1: It is noted that a Contract Notice covering all 6 areas covered by the tender was published in the Supplement to the Official Journal of the European Union on 25.2.2015, Contract Notice no. 2015/S 039-065965, see also section IV.3.2 above.
The deadlines for filing a complaint follows from "lov om Klagenævnet for Udbud" § 7 (formerly "hånhævelseslovens § 7) according to which a complaint must be filed with the Danish Complaints Board (Klagenævnet for Udbud) no later than 45 calendar days after the contracting authority has published a notice in the Official Journal of the European Union that the contracting authority has awarded the concession contract. The deadline is calculated from the day following the day when the notice was published.