Public procurement notice: Modification Of A Contract/Concession During Its Term
Published: 2019-08-21
Buyer: Transport Infrastructure Ireland (formerly known as NRA)
Country: IE
Contract type: Services
CPV classification: 31710000 | 34927000 | 45311000 | 48217000 | 48613000

Technical requirements: In 2006, Transport Infrastructure Ireland (‘TII’) (formerly NRA) undertook a competition in accordance with the Restricted Procedure pursuant to the Public Contracts Regulations 2006, in respect of the design, installation, operation and maintenance of roadside equipment and associated complete supporting systems for free-flow tolling of the M50 motorway. The free-flow system collects tolls for passage of vehicles passing a single location. TII awarded the contract to Emovis Operations Ireland Ltd (‘Emovis’) (at the time of award, known as BetEire Flow). Services provided by Emovis include:
— the design and installation of central back office IT systems which can serve account management, customer relations, enforcement and violation processing, and comprehensive reporting to TII,
— implementation of business processes around toll collection, customer services and support, interoperability with the national tolled network, violation and enforcement and public information,
Emovis will continue to perform the same services as those described in Section II.2.4) above. The change to which this modification notice relates is a 2-year extension of the contract term from March 2019 to March 2021 to facilitate the mobilisation and transition of the new toll operator pursuant to Contract Award Notice 2019/S 077-183799. For clarity, this 2-year extension is in addition to an earlier 1-year extension from March 2018 to March 2019. The original contract was due to expire in March 2018. By agreement, the original contract was extended by 12 months from March 2018 until March 2019 (the ‘initial extension’). No modification notice was published in respect of the initial extension. The Public Sector Regulations (SI 284/2016) (‘Regulations’) specifically provide that only certain safe harbours under Regulation 72 carry the requirement to publish modification notices. At the time of the initial extension, the safe harbour relied on was Regulation 72(1)(e), which covers changes which are not substantial as that term is defined in the Regulations. The Regulations make clear that, where contracting authorities have relied on Regulation 72(1)(e) to modify a contract where it can be justified that the modification is not substantial, they do not have publish a modification notice in the OJEU. Accordingly, at the time of the initial extension, there was no requirement for a notice to be published. That said, for completeness, the information on the duration in Section VII.1.5) below and the value in Section VII.1.6) below refers to both the initial extension and this 2-year extension.
The modification to which this notice relates is a 2-year extension of the contract, as set out above in Section VII.1.4). TII had re-tendered the original service, but the procurement competition was the subject of 2 unsuccessful legal challenges which suspended the award of the contract to the successful tenderer. These cases took a long period of time to progress through the courts, approximately 19 months in total. TII then re-commenced with efforts to award the contract to the successful tenderer which concluded on 29 March 2019 (Contract Award Notice 2019/S 077-183799), approximately 2 years after the intended award date.
In addition, there is an 18-month mobilisation and transition period for the successor contractor. Therefore, having regard to the time required for the legal process, the conclusion of the procurement competition and award of the new contract and the mobilisation and transition period within the new contract, it was clear that the existing contract would have expired prior to the new contractor being in place and ready to perform the required services. In order to ensure that services were not interrupted and that the toll collections continued, TII entered into a 2-year extension with the existing contractor (Emovis) to provide the service and safeguard the toll collections (circa. 150 000 000 GBP per annum) while the successor contractor completed the mobilisation and transition activities.
TII considered that a change of contractor could not be made pending the transition to the new operator, as the system is technically highly intricate and a transition to another contractor in the period available was not technically feasible. In addition, it would have caused very significant inconvenience, and a very substantial duplication of costs. Accordingly, and in accordance with Regulation 72(1)(b) of the European Union (Award of Public Authority Contracts) Regulations 2016, TII entered into the extension which is the subject of this modification notice. The extension did not involve any other significant change to the scope of service.


Winner: Emovis Operations Ireland Ltd