WRITTEN QUESTION E-3139/96 by Karla Peijs (PPE) to the Commission (22 November 1996)

Subject: Problems involving the selection of subsidiaries by public utilities for a public tendering contract pursuant to Directive 93/38/EC

1. Is the Commission aware of the contracting out of refrigerating plant by NV Eneco Logistiek (No 96/5133-080676/NL ((OJ S 133, 12.7.1996, p. 190. ))) under Directive 93/38/EEC ((OJ L 199, 9.8.1993, p. 84. )), whereby in the selection procedure NV Eneco invited its subsidiary GCI B.V. to submit a tender even though it appears not to comply with the selection criteria and rules set out in the notice?

2. Does the Commission agree that enterprises which express an interest in the selection procedure should satisfy the criteria and rules set out before being invited to submit a tender, particularly in the case of subsidiaries of the contracting body?

3. If so, does the Commission agree that contracting bodies have a particular duty of care in respect of subsidiaries tendering for specific projects, in order to guarantee that there is no discrimination between suppliers, contractors or service suppliers?

Answer given by Mr Monti on behalf of the Commission (10 January 1997)

The Commission has received a complaint concerning this award procedure administered by NV Eneco Logistiek, a contracting entity in the sense of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector. The substance of the complaint relates to the fact that Eneco would have invited to tender the enterprise Gas construction international (GCI), an enterprise owned 60% by Eneco itself and 40% by another contracting entity, whereas there are considerable doubts whether GCI does meet all selective criteria defined by Eneco. In order to evaluate this situation, the Commission has asked the Dutch government to inform it about the award procedure, more specifically on the selection of candidates, especially as to the question how and by which means GCI met all minimum requirements and as to the result of the award procedure.

The Commission shares the opinion of the Honourable Member that in each restricted tender procedure, all candidates invited to tender, must, without exception, fulfil all minimum requirements. This follows not only from Article 31 of the directive, which states that 'contracting entities which select candidates to tender in restricted procedures or to participate in negociated procedures shall do so according to objective criteria and rules which they lay down and which they shall make available to interested suppliers ...', but also from the principle of equal treatment, explicitly qualified by the Court of justice in its decision of 22 June 1993 ((Case C-243/89: Bridge over the Storebaelt. )) as a principle at the basis of the Community's procurement legislation. No derogation from this principle may be allowed.

Equal treatment of tenderers is not possible when selective criteria are applied differently to different candidates, depending on their connection with the contracting entity in question. Therefore, in all selection phases of procurement procedures, selective criteria have to be applied uniformly to all candidates, irrespective of their possible connection with the contracting entity. Contracting entities are fully responsible and have to ensure that all tenderers are treated equally and that they do not discriminate between candidates.