WRITTEN QUESTION E-2591/01

by Benedetto Della Vedova (TDI) to the Commission

(26 September 2001)

Subject: Private negotiation of a contract for the supply of a call centre service between the INPDAP and Telelcom Italian S.p.A.

In its Decision 1352 of 20 December 2000, the Board of Directors of the Italian social insurance agency INPDAP, authorised the signing of a contract with Telecom Italia for the establishment of a call centre.

This decision was taken on the basis of a private-treaty procedure.

However, it does not refer to any legislative provisions which would justify the use of his procedure. Subsequently, the Board of Directors referred to Article 7(2) (d) of Decree-law No 157/1995 which authorises the award of public contracts on a private-treaty basis in cases of extreme urgency resulting from unforeseeable circumstances, which make it impossible to apply the timescales required for open, restricted or negotiated procedures involving publication of invitations to tender. The contracting authority should in no way be responsible for the circumstances used to justify this extreme urgency.

However, the reference to this provision does not seem justified: (a) the services which the call centre is supposedly required to provide as a matter of urgency have been planned for several years and will in any case require an adjustment of the data bank which cannot be carried out rapidly; (b) even if we accept that the situation has now become urgent, the contracting authority must in that case be held responsible for the urgency, contrary to what is stipulated in the law (moreover, the INPDAP supervisory council requested that the call centre be established by June 2000).

Given that the signing of a two-year contract with Telecom Italian involves the installation of operational equipment as well as the recruitment and training of staff, it would be virtually impossible to subsequently organise a tender procedure in which all bidders could take part on an equal footing. The call centre operation conducted by Telecom Italia also involved the INPS and the INAIL on the basis of virtually the same reserved procedure and timescale.

Does the Commission agree:

1. that Decision No 1352/2000 was illegal as regards the choice of procedure, and that given the scale of the operation (approx. ITL 7 billion over a two-year period) excluding telephone costs incurred by the contracting authority, well in excess of the ceiling laid down by Article 7 of Directive 92/50/EEC(1)), a call for tenders should be organised at European level, pursuant to Council Directive 92/50/EEC of 18 June 1992?

2. that, given the economic weight of the bodies involved in the call centre operation (INPS, INAIL and INPDAP), Telecom is being placed in a dominant position on the basis of seemingly illegal acts over a significant share of the market in new communication technologies?

(1) OJ L 209, 24.7.1992, p. 1.

Answer given by Mr Bolkestein on behalf of the Commission

(5 November 2001)

1. The Commission has already opened an enquiry to check whether Community law on public contracts was complied with in the case of the contract which was recently awarded by Inpdap to Telecom Italia to provide a call centre service, as indicated by the Honourable Member. According to the information currently available, it would seem that the award of this contract is not subject to the rules relating to the choice of co-contractor as provided for in Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, to the extent that the services in question do not seem, for the most part, to be included in the services listed in Annex IA of the aforementioned Directive.

However, the contract in question must comply with the rules of the EC Treaty with regard to freedom to provide services and freedom of establishment and also with the general principles of non-discrimination, equality of treatment, proportionality and transparency. With regard to adhering to the principle of transparency in particular, the Court of Justice of the European Communities has ruled that the obligation of transparency incumbent on awarding authorities consists in ensuring that every potential bidder receives a suitable level of information which enables the market for services to be open to competition and the impartiality of the award procedures to be checked (see in particular the Judgment of 7 December 2000, Case-324/98, Telaustria, § 61-62).

2. Moreover, the Commission has opened inquiries into contracts of a similar nature to the above-mentioned contract concluded by Inail and Inps with Telecom Italia in order to ascertain the rules applied in the award of these contracts and check that the procedures followed by these organisations to select the contractor complied with Community law. Should the above-mentioned checks reveal that the procedures followed by Inpdap, Inail and Inps may not have been compatible with Community rules and principles, in particular the principle of transparency, this may result in the Commission applying the infringement procedure provided for in Article 226 (ex Article 169) of the EC Treaty.