Public procurement notice: Voluntary Ex Ante Transparency Notice
Published: 2021-11-17
Buyer: Femern A/S
Country: DK
Contract type: Services
Procedure: Contract award without prior publication
CPV classification: 71321000: Heating and ventilation design services | 71334000
Estimated value: 25000000 EUR

Technical requirements: On 29 June 2011 the contract notice (no 2011/S 122-202627) concerning the framework agreement for design services, electrical and mechanical systems, E&M consultant, was published in TED. The framework agreement was awarded to the economic operator named FEM Consult JV, and the contract award notice (no 2012/S 18-028333) was published on 27 January 2012. This notice concerns Femern A/S' intention to prolong the existing framework agreement between Femern A/S and FEM Consult JV for a period of 4 years and 4 months, equal to the period of suspension of the framework agreement due to delay in the approval process in Germany, cf. section IV.1.1) for further information.
On 29 June 2011 the contract notice (no 2011/S 122-202627) concerning the framework agreement for design services, electrical and mechanical systems, E&M consultant, was published in TED. The framework agreement was awarded to the economic operator named FEM Consult JV, and the contract award notice (no 2012/S 18-028333) was published on 27 January 2012. This notice concerns Femern A/S' intention to prolong the existing framework agreement between Femern A/S and FEM Consult JV for a period of 4 years and 4 months, equal to the period of suspension of the framework agreement due to delay in the approval process in Germany.
The prolongation of the framework agreement between Femern A/S and FEM Consult JV without a new procurement procedure falls under the Danish Public Procurement Act section 183, cf. further below. Section 183 of the Danish Public Procurement Act, implements Directive 2014/24/EU art. 72(1)(c).
The construction of the fixed link across Fehmarnbelt requires approvals from the authorities in both Denmark and Germany. The Danish approval was achieved in 2015 with the passing of the “Act on the Construction and Operation of a Fixed Link across the Fehmarnbelt with Associated Landworks in Denmark”. However, in regards 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 to obtain the required plan approval substantially exceeded the reasonable expectations of Femern A/S initially at the time of tendering out 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 the delay in obtaining the necessary plan approval in Germany it was decided in September 2015 to suspend the framework agreement until January 2020, i.e. a period of 4 years and 4 months. 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.
During the suspension period of 4 years and 4 months no services was delivered under the framework agreement and the contemplated prolongation of the framework agreement merely equals the suspension period and is found necessary in order to finalize the initially contemplated work under the existing framework agreement. FEM Consult JV 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. Furthermore the prolongation will not result in a price increase higher than 50% of the value of the original framework agreement. The conditions for applying the Danish Public Procurement Act section 183 are therefore met.
The value stated in section II.1.7) and V.2.4) is the total contract value including all options as estimated in the initial contract notice 2012/S 018-028333. The contemplated prolongation of the framework agreement merely equals the suspension period, cf. section IV.1.1, hence the total value of the contract is not expected to be affected by the prolongation.
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 (i.e.10 calendar days starting on the day after this notice has been published in TED).
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/


Winner: FEM Consult JV
Award value: 25000000