WRITTEN QUESTION E-1429/01

by Erik Meijer (GUE/NGL) to the Commission

(17 May 2001)

Subject: Delay in supplies of railway equipment rolling stock by European legislation

1. Can the Commission confirm that, with increased demand for passenger transport, it is becoming difficult for railway companies to obtain new rolling stock (rail-cars and train units) since the delivery time is three years even for an existing item?

2. Is the Commission also aware that the first year of this three year delivery period is taken up with fulfilment of the preliminary conditions for eligibility to participate in European tendering procedures?

3. As things now stand, what is the minimum amount of time taken between the decision to purchase new rolling stock and conclusion of a contract with the supplier?

4. What possibilities exist for introducing an accelerated procedure for ordering existing rolling stock from a supplier from whom such equipment has already been obtained on one or more previous occasions?

5. What action is being taken by the Commission to achieve a significant reduction in the waiting times caused by European legislation, so as to enable railway companies provide a more rapid and flexible response to the growing demand for increased rail capacity?

Answer given by Mr Bolkestein on behalf of the Commission

(18 July 2001)

As regards the opinion of the Honourable Member that, as a result of the application of the public procurement legislation, a twelve month period is effectively lost in relation to contracts for the supply of trains, the Commission would like to make the following observations.

The applicable directive, Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors(1) as modified by Directive 98/4/EC of the Parliament and of the Council, of 16 February 1998(2) obliges contracting entities falling within the scope of this directive, to issue a call for competition in order to open up the European market and to create genuine competition.

The Directive contains a rather flexible system and foresees three different possibilities for contracting entities to make this call for competition, being: by means of a contract notice, by means of a periodic indicative notice or by means of a qualification system.

The Directive imposes time limits, the purpose of which is effectively to guarantee that there can be genuine competition. The time limits must therefore be sufficiently long to enable interested parties to submit valid tenders, taking into account the various factors (complexity of the contract, etc.) mentioned in the provision. These time limits are considered minimum periods and must be complied with. Where the complexity of a specific contract requires, a longer time limit should be defined by the contracting entity.

If a contracting entity chooses the first possibility for a call for competition, namely publication of a contract notice, it can choose to apply the open, restricted or negotiated procedure. In the open procedure, the time limit for receipt of tenders has to be 52 days, which may be shortened to 36 days where contracting entities have published a periodic indicative notice which is not used as a call for competition. In restricted and negotiated procedures, the directive prescribes that as a general rule, the time limit for receipt of requests to participate in the procedure shall be at least 37 days from the dispatch of the notice and shall in any case not be less than 22 days (or in exceptional cases: 15 days). To this time limit, the time limit for receipt of tenders must be added. The directive provides for this time limit to be fixed by mutual agreement between the contracting entity and the selected candidates. Where no agreement is reached, this time limit shall be at least three weeks and in any case not less than ten days from the dispatch of the invitations to tender.

When publishing a periodic indicative notice which serves as a call for competition, a contracting entity is bound to respect the same time limits as those set out above and which are applicable to restricted and negotiated procedures.

A qualification system enables contracting entities, after publication in the Official Journal of the European Communities, to establish a list of selected suppliers, contractors or service providers. For individual contracts, the contracting entity can invite the previously selected candidates to tender. The time limit for receipt of tenders is the same as for the open or negotiated procedure: either fixed by mutual agreement, or, if no agreement is reached, three weeks and in no case less than ten days from the dispatch of the invitations to tender.

Such a qualification system enables the contracting entities to save time for each individual contract as the selection phase has already been undertaken. At the same time, this enables the contracting entity to take into account previous experience in the field, which is a legitimate criterion for assessment of candidate's capacity.

The above shows clearly that in no case will one year be lost because of a European tender procedure. Indeed the time limits to be respected vary from about eight weeks (the longest time limit) to about three weeks or, where there is mutual agreement between the contracting entity and the candidates, even less than three weeks.

This time limit is not to be regarded as wasted time, since, irrespective of whether the directive is applicable, for every purchase of a considerable sum, a contracting entity will have to consult the market in order to assess the different options which exist for fulfilling its needs.

The Commission therefore considers that the existing system, which lays down minimum time limits in order to guarantee that genuine competition is created and at the same time guarantees that candidates have a real opportunity to compete for the contract in question, allows for sufficient flexibility. Contracting entities may choose how to carry out a call for competition according to what best suits the situation. Moreover, the Commission is of the opinion that the applicable time limits do not unnecessarily delay the tender procedures.

The Commission does not therefore envisage introducing changes in the existing legislative system to reduce the time limits set out in the directives.

In this respect the Commission underlines that in the proposal for modification of the existing legislation(3), adopted by the Commission on 10 May 2000, the applicable time limits are essentially the same. The only modification is a reduction of time limits where electronic means are used for dispatch of notices or where the contracting entities offer direct access to the specifications (and to other contract documents) free of charge via the Internet. The new provisions introduce the general rule that for specific phases of a tender procedure the time-limits may be shortened where notices are sent by electronic means. This mechanism takes into account the advantage deriving from rapid publication in the case of electronic transmission.

(1) OJ L 199, 9.8.1993.

(2) OJ L 101, 1.4.1998.

(3) OJ C 29 E, 30.1.2001.