Public procurement notice: Modification Of A Contract/Concession During Its Term
Published: 2022-05-25
Buyer: Femern A/S
Country: DK
Contract type: Services
CPV classification: 71000000 | 71311300 | 71313000: Environmental engineering consultancy services | 71313420 | 71313430

Technical requirements: On 17 April 2014 the contract notice (no 2014/S 076-131973) concerning the Framework Agreement for Environmental Advisor, was published in TED. The framework agreement was awarded to the Consortium Fehmarnbelt Environmental Monitoring and Consultancy (FEMO), and the contract award notice (no 2015/S 013-019599) was published on 20 January 2015. This notice concerns Femern A/S' intention to prolong the existing framework agreement between Femern A/S and Consortium FEMO until 31 December 2029 (where the construction of the Fixed Link across the Fehmarn Belt is expected to be finalized), though at least until the finalization of the Fixed Link (as was the original intention with the procurement, cf. the contract notice). After this (and the expiry of stand still as stated in notice no 2022/S 067-178300) the framework agreement has been prolonged. This notice concerns the prolongation of the existing framework agreement, cf. VII.2.1) and VII.2.2).
According to the contract notice (no 2014/S 076-131973) and the initial contract award notice (no 2015/S 013-019599) the existing Framework Agreement covers Environmental Advisory. For further information please see contract notice no 2014/S 076-131973 section II.1.4).
According to the contract notice (no 2014/S 076-131973) the framework agreement should cover environmental consultancy in the final design and construction phases and the replacement of the environmental consultant in such a complex infrastructure project as the Fixed Link across the Fehmarn Belt could cause significant problems for the project.
In regard of section V.2.4) it is noted the value stated is the initial estimated value (DKK 300,000,000 cf. contract notice and initial contract award notice).
The total value of the framework agreement is estimated to DKK 525,000,000 (including the prolongation). The value stated in section VII.1.6) is the value that exceeds the initial estimated value, i.e. DKK 225,000,000. It is noted that part of the amount, that exceeds the initial estimated value (DKK 300,000,000, cf. contract notice), represents indexation and is therefore not in fact an actual modification of the framework agreement’s value. The increase in price is stated in section VII.2.3).
According to the Danish Act on the Complaints Board for Public Procurement, etc. (lov om Klagenævnet for Udbud m.v.) (the Act is available (in Danish) at www.retsinformation.dk), complaints can be lodged with Klagenævnet for Udbud (The Danish Complaints Board for Public Procurement).
Complaints must be submitted to The Danish Complaints Board for Public Procurement before the expiry of 30 calendar days, see section 7(3) of the Act, from the day after the contracting entity has published a notice in the Official Journal of the European Union that the contracting entity has entered into a contract if the notice includes an explanation of the grounds for the decision.
Not later than at the time of lodging a complaint with The Danish Complaints Board for Public Procurement, the complainant must notify the contracting entity in writing that a complaint has been lodged with The Danish Complaints Board for Public Procurement and whether the appeal was lodged during the standstill period.
The e-mail address of The Danish Complaints Board for Public Procurement is set out in section VI.4.1).
The Danish Complaints Board for Public Procurement’s complaints procedure is available at https://naevneneshus.dk/start-din-klage/klagenaevnet-for-udbud/vejledning/
On 17 April 2014 the contract notice (no 2014/S 076-131973) concerning the Framework Agreement for Environmental Advisor, was published in TED. The framework agreement was awarded to the Consortium Fehmarnbelt Environmental Monitoring and Consultancy (FEMO), and the contract award notice (no 2015/S 013-019599) was published on 20 January 2015. By voluntary ex ante transparency notice (no 2022/S 067-178300) Femern A/S announced Femern A/S intention to prolong the existing framework agreement between Femern A/S and Consortium FEMO until 31 December 2029 (where the construction of the Fixed Link across the Fehmarn Belt is expected to be finalized), though at least until the finalization of the Fixed Link (as was the original intention with the procurement, cf. the contract notice). After this (and the expiry of stand still as stated in notice no 2022/S 067-178300) the framework agreement has been prolonged. This notice concerns the prolongation of the existing framework agreement, cf. VII.2.1) and VII.2.2).
According to the contract notice (no 2014/S 076-131973) the framework agreement should cover environmental consultancy in the final design and construction phases and the replacement of the environmental consultant in such a complex infrastructure project as the Fixed Link across the Fehmarn Belt could cause significant problems for the project.
This notice concerns the prolongation of the existing framework agreement for Environmental Advisory Services between Femern A/S and FEMO until 31 December 2029 (where the construction of the Fixed Link across the Fehmarn Belt is expected to be finalized), though at least until the finalization of the Fixed Link (as was the original intention with the procurement). According to the contract notice (no 2014/S 076-131973) the framework agreement should cover a period of 8 years until the operation of the Fixed Link, which at that time was expected to be around 2021. However, the construction of the Fixed Link has been delayed, and Femern A/S currently expects the Fixed Link to be finalized in 2029. Consequently, Femern A/S prolonged the existing framework agreement. Femern A/S' intention to prolong the framework agreement was announced pursuant to notice no 2022/S 067-178300. It is noted that the existing framework agreement was prolonged after the expiry of stand still as stated in notice no 2022/S 067-178300.
The prolongation of the framework agreement without a new procurement procedure falls under the Danish Public Procurement Act sections 181 and 183, which implements Directive 2014/24/EU art. 72(1)(b) and (c).
The construction of the Fixed Link requires approvals from the authorities in both Denmark and Germany. The Danish approval was achieved in 2015. However, in regard to the German plan approval the administrative procedure in Germany has been subject to massive delays, i.a. due to a number of complaints and legal proceedings. As a result hereof, the actual processing time in Germany substantially exceeded the reasonable expectations of Femern A/S initially at the time of tendering the framework agreement. Final approval in Germany was obtained in November 2020 in conclusion of the final oral proceedings at the Federal Administrative Court in Leipzig. As a direct result of this delay the overall timeschedule for the finalization of the Fixed Link has been disturbed and delayed. Consequently, Femern A/S’ demand of the Environmental Advisor, is still relevant and will continue being relevant until the finalization of the Fixed Link (expected 2029). The extraordinary long processing time in Germany and the resulting delay of the project was not possible for Femern A/S to foresee at the time of initiating the procurement procedure despite a diligent and thorough preparation of the procurement process for the framework agreement. A replacement of the Environmental Advisor in relation to work with German monitoring and supervision is in reality not possible, due to strict rules on approvals in Germany. The contemplated prolongation of the existing framework agreement is found necessary in order to finalize the initially contemplated work under the existing framework agreement. Consortium FEMO is therefore generally to deliver the same services as initially intended and hence no modification to the overall nature of the contract is made as a result hereof. The total value of the framework agreement is estimated to DKK 525,000,000 (including the prolongation). It is noted that part of the amount, that exceeds the initial estimated value (DKK 300,000,000, cf. contract notice), represents indexation and is therefore not in fact an actual modification of the framework agreement’s value. The prolongation will therefore not result in a price increase higher than 50% of the value of the existing framework agreement. The conditions for applying the Danish Public Procurement Act section 181 and 183, are therefore met.


Winner: DHI