Public procurement notice: Voluntary Ex Ante Transparency Notice
Published: 2019-11-26
Buyer: SE Service A/S
Country: DK
Contract type: Supplies
Procedure: Contract award without prior publication
CPV classification: 32420000 | 32430000 | 72000000 | 72200000 | 72400000
Award criteria: Lowest price
EU fund: ESF

Technical requirements: Υπηρεσίες τεχνολογίας των πληροφοριών: παροχή συμβουλών, ανάπτυξη λογισμικού, Διαδίκτυο και υποστήριξη
On 17.7.2019, Syd Energi concluded a contract with Conscia A/S on the delivery of an SDN solution. The offered solution was based on a software release from Cisco required in order for the offered solution to fulfil the requirements as to functionality laid down in the contract documents. Following the conclusion of the contract, Cisco, however, announced that the said release had been postponed indefinitely. Against this background, Conscia has, in the interim period, worked on a solution in order to perform the contract. Performance of the functionality laid down in the contract has now been rendered possible by way of Cisco's release of new software at the beginning of December 2019 as well as by addition of 7 switches to the solution design. Consequently, the new solution implies no changes to the functionality as compared to the offered solution, but the delivery thereof has simply been delayed.
The changed solution design delivered by Conscia as a consequence of the postponed release of the required software from Cisco does not imply that any changes must be made to the contract or the requirements as to the subject-matter of the contract. The functionality required in the contract documents and offered by Conscia is consequently still delivered in full. It is therefore assessed that the insignificant change to the solution design does not constitute any material contract change. In addition, Conscia's delay in delivering a product conforming to the contract as from 31.8.2019 to December 2019 is not assessed to constitute a contract change that must be made subject to a tender procedure. It is consequently assessed that the conditions for making a contract change pursuant to Article 89(1)(c) of the Utilities Directive have been fulfilled. The delay which is owing to Cisco's sudden and indefinite postponement of a software release is consequently due to circumstances which SydEnergi (or Conscia) undoubtedly could not have foreseen. Since the product delivered also, cf. above, fulfils the requirements of the contract documents and the contract, we are also not talking about a change to the general nature of the contract.
In events where, prior to the conclusion of a contract, the contracting authority has published an announcement in the Official Journal of the European Union from which appears that the contracting authority intends to conclude a contract with a specific undertaking, and such announcement includes the reasons for the contracting authority's decision to award the contract without any prior publication of an announcement in the Official Journal of the European Union, and when the contract has not been concluded before expiry of 10 calendar days calculated from the day after the announcement was published, any complaint against the contracting authority's decision as to its intention to conclude a contract with a specific undertaking must be filed with the Complaints Board for Public Procurement within 30 calendar days calculated from the day after the contracting authority published an announcement stating that the contracting authority has concluded a contract. A complaints fee of 20 000 DKK must be paid at the same time.


Winner: Conscia A/S