WRITTEN QUESTION E-2846/02

by Erik Meijer (GUE/NGL) to the Commission

(10 October 2002)

Subject: Discrimination between three bidders in the award of the contract for services on the high-speed rail line in the Netherlands as a means of extorting a higher payment

1. Is the Commission aware of the way in which the contract was awarded in the Netherlands for a 15-year concession to provide services on the Amsterdam Rotterdam Breda Antwerp high-speed rail line, which will come into operation in 2006 as an extension of the existing high-speed line between Paris North and Brussels South, in which three consortia were involved, namely 1. Nederlands Railways (NS) and the airline KLM; 2. Deutsche Bahn and the British transport operator Arriva; 3. the Netherlands regional transport operator Connexxion and the French conglomerate CGEA/Vivendi/Connex?

2. Can the Commission confirm that no equivalent assessment was made of the three bids for the contract because, in breach of the invitation to tender, negotiations were held only with the first bidder and the two others were merely used to put further pressure on NS, which had had earlier rejected a private offer, to agree to pay the State an amount of EUR 148 a year and, as a result, charge future passengers very high fares?

3. Does the Commission regard this state of affairs as complying with its proposal for a regulation on action by Member States concerning public service requirements and the award of public service contracts in passenger transport by rail, road and inland waterway [2000/0212 (COD)] of 26 July 2000 and with the position adopted by the European Parliament at first reading on 4 November 2001 [2000/0212 (COD)-PE-1],

in view of the fact that, although these two texts differ with regard to the public tender requirement for all public transport, they agree that bidders should be treated equally when comparing their suitability in a tender selection procedure?

4. Does the state of affairs outlined above with regard to the tender give the Commission grounds for asking the Netherlands government to reopen the procedure and to decide clearly in advance whether it is going to make a fair comparison of all the bids, or award the contract in an underhand way which raises no expectations among the other bidders?

Source: NRC-Handelsblad, 15 September 2002.

Answer given by Mr Bolkestein on behalf of the Commission

(25 November 2002)

1. In 1999 and 2000, the Commission has, at the beginning of the process, received information relating to the procedures considered by the Dutch authorities in order to award a 15-year concession contract concerning domestic and international transport services over the HSL-Zuid, the high-speed line between Belgium and the Netherlands. Once the choice being made in favour of an international tendering procedure, the Commission has not followed the award process itself and has neither received a complaint in this respect which would have prompted it to investigate the process.

2. Therefore, the Commission cannot confirm that no equivalent assessment of the three bids for this contract has been made. The Commission had notice of the launch of the procedure, but did not follow the further conduct of it.

4. At the present moment, no complaint has been received by the Commission with regard to the award of the services concession in question and the Commission does not possess information according to which the Dutch authorities would have violated Community public procurement law and which would justify the launch of an infringement procedure.

According to the information the Commission possesses, the Dutch authorities have indeed respected the Community public procurement law applicable to services concessions, i.e. the principles of the EC treaty, and especially those of transparency and non-discrimination. The Dutch authorities have published a pre-information notice in the Official Journal of the European Communities on 10 June 1999. This notice referred to the Internet site where the Registration Document for potential operators could be found. The procedure to be followed and the method of evaluation of tenders were set out in these documents. Even if the Dutch authorities first considered to give a preferential treatment to NS regarding the domestic transport services, they eventually resorted to a public tender procedure for domestic and international transport services and sent to this effect a qualification document to all parties which had registered their interest in an earlier phase.

The Commission thanks the Honourable Member of the Parliament for drawing its attention to the issue of equivalent assessment of the bids. The Commission will request information from the Dutch authorities in order to verify how the method of evaluation and negotiation indicated in the invitation to tender has been applied. The Commission would be grateful if the Honourable Member of the Parliament could submit copies of documents or any other piece of evidence, which he possibly possesses and which would allow its services to investigate this issue.

3. The Commission's proposal for a Regulation on public service requirements(1) in public transport has not yet been adopted. The proposal permits contract durations of up to 15 years for rail services. It requires tendering procedures to be fair, open and non-discriminatory. It permits post-tender negotiation for contracts with an estimated annual value of more than EUR 3 000 000, providing that the requirements of fairness, openness and non-discrimination continue to be respected. In the light of the above (see the procedure followed by the Dutch authorities and outlined in the documents referred to in (Ad 4)), the Commission does not possess information according to which the contract award procedure would not have been compliant with the provisions of the proposed Regulation.

(1) OJ C 365 E, 19.12.2000.