Public procurement notice: Voluntary Ex Ante Transparency Notice
Published: 2016-03-09
Buyer: Femern A/S
Country: DK
Region: Sjælland
Contract type: Works
Procedure: Negotiated without a prior call for competition
CPV classification: 45000000: Construction work | 45100000: Site preparation work | 45200000: Building and civil engineering work | 45220000 | 45221000: Engineering works for bridges and tunnels
Estimated value: 1366331178 EUR
Award criteria: Price, Technical and Administrative

Technical requirements: Price
Technical and Administrative
The Fehmarnbelt Fixed Link Project (‘Project’) is the final stage in the realisation of a straight traffic corridor between Scandinavia and continental Europe. This will be an immersed tunnel containing two dual carriageways and a twin-track railway subject to plan approvals. It will traverse the 19 km distance across the Fehmarnbelt between Lolland in Denmark and Puttgarden in Northern Germany. The immersed tunnel elements will be manufactured at a pre-designated site at Rødbyhavn on Lolland (‘Production Site’). The Principal Contracts are: (1) Tunnel Dredging and Reclamation Contract; (2) Tunnel North Contract; (3) Tunnel South Contract; and (4) Tunnel Portals and Ramps Contract. Voluntary ex ante transparency notices are being simultaneously published in the Official Journal of the European Union for all four Principal Contracts.
The works to be carried out under the Contract were subject to a call for competition (2012/S 192-315515) and the award and terms of the Contract are in accordance with that procedure (a competitive dialogue).
A) However, as part of the procedure, the time limit for completion of the works has been extended as a consequence of the delay of the land works connecting the link in Germany and in order to achieve savings. In the call for competition, the time limit for performance of the Contract was stated to be 68 months. The time limit for performance of the contract has been extended to 87 months.
B) Furthermore, due to an unforeseen delay in the German Plan Approval process, the Contract will be concluded with the addition of a Condition Precedent. This addition follows the principle stated in the call for competition, section VI.3 (and similarly PQQ, section 1.3.6) to the effect that the start of the construction is subject to the approval by the German planning authorities. This principle has been maintained throughout the process, including in the Stage 1 invitation and onwards.
According to the Condition Precedent, the Contract does not come into full force and effect until the Owner serves a notice with a works commencement date following the German Plan Approval having been obtained (or the Danish Ministry of Transport and Building decides to start the works regardless), and the Contract will automatically lapse no later than 1 January 2022 (the Contract has several possibilities of lapsing earlier) if the Condition Precedent has not been fulfilled by then.
The contractor will be compensated for the costs related to the inclusion of the Condition Precedent. Prior to award of the Contract, Femern A/S has discussed the terms of adding the Condition Precedent with all participating bidders in an organised process with written feedback and meetings. The terms of compensating the contractor under the Condition Precedent follow from the result of that process and include a fixed compensation for running costs as well as a capped compensation of other documented costs.
Following this, Femern A/S has now finalised the evaluation of the tenders, has identified the Preferred Bidder (see section V.3) and intends to sign the Contract, including the terms relevant to the Condition Precedent, with the Preferred Bidder. However, Femern A/S does not consider the tendering process to be concluded until the Contract has been signed and may yet arrive at the conclusion that it is necessary to abandon (cancel) the process. For example, the signing of the Contract remains subject to a final political approval of the terms.
As stated above, the terms of the Contract have been subject to a call for competition. During the procedure, amendments were made to the Contract. A) Femern A/S considers that the extension of the time limit for completion of the works does not constitute a substantial change. Femern A/S bases this on several factors but most notably (not in order of importance): 1) the amendment was carried out as part of a competitive dialogue (i.e. the purpose of the dialogue is to identify and define the means best suited to satisfy Femern A/S' needs, which infers flexibility), 2) the consequences of the amendment have been subject to competition from all the prequalified bidders (i.e. all bidders have submitted bids based on the extended time limit), 3) Femern A/S considers that no other/new economic operators could be expected to have taken part in the procedure had the duration of 87 months been included in the call for competition (the Contract Notice), 4) the extension is a consequence of the delay of the land works connecting the link in Germany and the possibility for cost savings created by such an extension. B) In the call for competition and throughout the competitive dialogue, Femern A/S has openly stated that the start of the construction work is subject to approval by the German planning authorities and the assent of the Danish Parliament to a construction act. Femern A/S originally planned not to award the Contract until the said approval had been obtained. However, Femern A/S now considers it appropriate to conclude the Contract and only delay the start of the construction work until the German Plan Approval is achieved. Femern A/S considers that this does not constitute a substantial change. Femern A/S bases this on several factors but most notably (not in order of importance) that 1) the German Plan Approval process has been delayed beyond the planned finalisation of the tender procedure and the bidders were averse to agreeing on further extensions of the procedure (i.e. in the form of an extension of the bid validity period in return for compensation of the costs incurred). Furthermore, 2) the terms of the Condition Precedent have been subject to discussions with all bidders and the Conditions replace similar terms in the existing Contract handling delays in the German Plan Approval process. This ensures that the economic balance of the Contract is not changed in favour of the contractor in a manner which was not provided for in the terms of the initial Contract. Finally, 3) as stated above, the Project has always been subject to the German Plan Approval and the added terms are a continuation of this principle, cf. also above in II.1.4, under B about the call for competition and tender documents. In the call for competition the cost of awaiting the Approval was to be compensated as bid costs. With the Condition Precedent, the cost is now covered under the Contract instead of as part of the tendering procedure.
The Project is part of Priority Project No 20 of the EuropeanCommunity TEN-T programme. It is part of the core
The total price stated above in sections II.2.1) and V.4) is the total amount for evaluation under the tendering procedure with the addition of the expected costs related to the Condition Precedent.
Regarding section IV.1.1) and the selection of ‘Negotiated without a publication of a contract notice / call for competition’ and Annex D, section 2, selection of ‘The contract falls outside the scope of application of the Directive’, it should be noted, that the Contract has in fact been subject to a prior publication, cf. also the notices listed in section IV.3.2. This notice is regarding the changes in the terms of the contract stated above which Femern A/S considers to be within the scope of the Contract Notice, cf. the description in Annex D.
According to the (Danish) Act. no. 492 of 12 May 2010 as amended (in Danish: Lov nr. 492 af 12. maj 2010 med senere ændringer (håndhævelsesloven/klagenævnsloven)), complaints can be lodged with the Complaints Board for Public Procurement. The complainant must notify the contracting authority regarding the complaint and whether the complaint is submitted during the standstill period (i.e. 10 calendar days starting on the day after this notice has been published in TED) no later than at the time when the complaint is lodged with the Complaints Board.
Following signing of the Contract, Femern A/S will furthermore release a contract award notice which will initiate the deadlines for lodging an appeal with the Complaints Board for Public Procurement. Information on these deadlines will follow in that notice.


Number of bids: 5