WRITTEN QUESTION E-1252/02

by Charles Tannock (PPE-DE) to the Commission

(7 May 2002)

Subject: Rules of tendering with specific reference to the PowderJect vaccine contract in the UK

It has been widely reported in the UK that PowderJect Pharmaceuticals and a Danish partner have just been awarded a £ 32 million contract to supply a smallpox vaccine contract.

Rival companies, including Acambis, protested that they were not given a fair chance to bid for the contract. The UK Health Minister has said that the contract was awarded to PowderJect because it was the only company that was able to provide the Lister strain of the vaccine. Scientists, however, have cast doubt on the need to base the vaccine on a particular strain, with Professor John Oxford of St. Bartholomew's and the Royal London School of Medicine quoted in the Sunday Telegraph (14.04.2002) as saying: I would have thought there is no medical reason for this. The Lister strain is the classic strain that has always been used in this country (the UK) but it is only one of a number that were used in the global eradication programmes in the 1970's.

Acambis itself has won a contract to supply the US Government with a different strain.

Can the Commission clarify the regulations governing the provision of tenders for large commercial contracts, and indicate whether it believes that all Member States broadly comply with those regulations and whether the British Government has complied with its obligations in this case?

Answer given by Mr Bolkestein on behalf of the Commission

(12 June 2002)

The Commission is not fully aware of all the steps which the United Kingdom authorities may have taken in the award of the contract referred to by the Honourable Member. In the absence of such information, it is not possible to conclude with any certainty whether this particular contract falls within the scope of Council Directive 93/36/EEC of 14 June 1993, coordinating procedures for the award of public supply contracts(1) and whether the award of the contract should have been subject to open competition. The Commission will examine any supplementary information that the Honourable Member may provide in this context.

It is understood that the smallpox vaccines were procured by the United Kingdom authorities to address possible terrorist attacks in the light of 11 September atrocities and in particular the ensuing concerns about bio-chemical terrorist attacks.

In this context, the Honourable Member is referred to Article 2 of the above-mentioned Directive which provides that certain contracts are outside its scope. This includes supply contracts which are declared secret or the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member States concerned or when the protection of the basic interests of the Member State's security so requires.

As a derogation from the general rule that public contracts must be awarded by public tender on the basis of criteria designed to ensure best value for money, Article 2 has to be restrictively construed on a case by case basis. Relevant factors could, however, include a perceived need at the time of the contract not to announce the existence or nature of the contract for public security reasons. Statements made by the European Court of Justice in Case C-273/97 of 26 October 1999 to the effect that Member States have a degree of discretion when adopting measures which they consider to be necesssary in order to guarantee public security, may also be a relevant factor in this type of case.

It is understood that other Member States which have recently procured smallpox vaccines have adopted a similar approach to that taken by the United Kingdom authorities in this case on grounds of the security concerns surrounding such contracts.

(1) OJ L 199, 9.8.1993.