EN Official Journal of the European Union CE 78/259

(2004/C 78 E/0260)

WRITTEN QUESTION P-3323/03

by Roberta Angelilli (UEN) to the Commission

(5 November 2003)

Subject: Suspected infringement of the rules on public contracts by ATAC in Rome

On 30 June 1998 the public transport corporation of Rome, ATAC, issued a call to tender, via resolution No 162, for the design, construction and installation of a new system of machinery for dispensing and validating tickets. The requirements turned out to be particularly difficult to meet, as regards both the technical specifications, which were way above normal market standards, and the extremely short deadlines for completion, impossible for any of the candidates to meet using current technologies. The penalty clauses for delayed completion were also unrealistic. For these reasons none of the firms invited to tender did so, except for TSF, which was excluded by the contracting entity, and ERG Motorola, which was thus awarded the contract. Can the Commission say whether it considers that this procedure complied with the provisions of Directive 93/38/EEC (1), Article 18(5) of which stipulates ‘technical specifications which mention goods of a specific make or source or of a particular process, and which have the effect of favouring or eliminating certain undertakings shall not be used’? Can it also say whether it considers that the call to tender complies with Article 23(5) of the same directive which states that the selection criteria must be ‘clear and non-discriminatory’ and ‘sufficient to ensure genuine competition’?

After the contract was awarded to ERG the specifications were radically altered by decision No 11 of 25 August 1999 issued by ATAC's sole administrator, whereby the above-mentioned conditions were cancelled and replaced by contractual terms favourable to the contractor as regards both the technical characteristics and completion dates, as well as the amount of the penalty. Furthermore, the specifications of the machinery finally delivered by ERG do not in any way match those described in the call to tender of 1998. Does the Commission not consider that this behaviour infringes the rules on competition laid down in Article 81 (d) of the Treaty?

The contract for maintaining the machines was subsequently also awarded to ERG without a public tendering procedure. This private arrangement was justified by the claim that the maintenance contract was inseparable from the other one. ‘Expert’ opinions of dubious origin were used as documentation in support of this argument. Can the Commission, within the scope of its competences, ensure that the matter is investigated more thoroughly?

Answer given by Mr Bolkestein on behalf of the Commission

(27 November 2003)

The Commission does not, at present, have the necessary information to assess whether the award of the public contract by the ATAC public corporation mentioned by the Honourable Member was carried out in accordance with Community law.

The Commission will therefore contact the Italian government to obtain the information required in order to ascertain whether ATAC complied with Community rules and principles on public procurement in the case in question. On the basis of the information provided by the Honourable Member, the Commission will, in particular, check whether the procedures followed by ATAC on this occasion comply with Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, which applies to public contracts awarded by contracting entities which operate public urban transport networks. It will also check whether they comply with the rules and principles in the EC Treaty relating to the completion of the internal market.

On the other hand, given that the question relates to public contract award procedures and not to agreements which may be anti-competitive under competition law, the Commission does not consider that Article 81 of that Directive is applicable in this particular case.

(1) OJ L 199, 9.8.1993, p. 138.