EN Official Journal of the European Union CE 84/955

(2004/C 84 E/1054)

WRITTEN QUESTION P-1170/04

by Manuel dos Santos (PSE) to the Commission

(13 April 2004)

Subject: Construction of the Amoreiras tunnel in Lisbon

On 29 May 2002 the Lisbon Municipal Chamber (LMC) approved the call to tender for the contract to alter the level of the streets Avenida Duarte Pacheco, Rua Joaquim António de Aguiar and Avenida Fontes Pereira de Melo, the basic project for which stipulated that:

— the building work would overlap with other infrastructure and those submitting tenders should offer solutions to divert such infrastructure;

— the competing contractors should submit the proposed solutions worked out on the basis of a preliminary study, taking into consideration all the specialised tasks involved, including the diversion of infrastructure occupying the sub-soil;

— the contract should include all the work carried out to meet all the objectives entailed in the complete execution of the project, including all the diversions carried out by sub-contractors.

On 14 March 2003 the LMC did not award the contract to any of the candidates, since they all quoted a higher total price, and it decreed that the contract should be awarded directly. Recourse to this method (when no suitable proposals are received in response to a public tendering procedure) must not entail any deviation from the programme and specifications sheet on which the competition was based. When examining the proposals in this context the Commission decided that the specifications for the repositioning of infrastructre could not be considered as essential elements of the contract. On 22 May 2003 the LMC awarded the contract directly to the group consisting of the firms Empresas Construcções do Tâmega S.a. and CME — Constucções e Manutenção Electromecânica S.A., which in their proposal removed essential construction tasks from the context of the contract, with a substantial impact on infrastructure.

In view of all this, can the Commission say:

— whether the direct award procedure under the above-mentioned terms constitutes an infringement of Article 7(3)(a) of Directive 93/37/EEC (1) and the principle of free competition,

— whether the fact that the proposal did not correspond to the basic project and specifications sheet and that the LMC took into consideration and initiated the negotiations on this basis to the prejudice of third parties acting in good faith, does not violate the principle of equal treatment inherent in the application of Community law?

Answer given by Mr Bolkestein on behalf of the Commission

(30 April 2004)

Under Community directives, all contracts for pecuniary interest concluded between a contracting authority or contracting entity and an economic operator for the execution of works, the building of a structure, the provision of services or the supply of goods, are known as public works, services, or supply contracts. If the value of the contract exceeds a threshold set by the directives, the award of such contracts should comply with the provisions of the Community directives which set detailed rules, particularly as regards disclosure or participation by enterprises.

The use of a negotiated procedure is only permitted in certain exceptional cases laid down by the public contract directives, insofar as this procedure derogates from the common rules set out in the directives.

According to the consistent case-law of the Court of Justice, it is for the party placing reliance on this exception to prove that the circumstances justifying the derogation do in fact exist (see, for public works contracts, the judgment of 10 March 1987, Commission v. Italy, Case 199/85).

The Commission does not, at present, possess sufficient information to be able to determine whether the rules of Directive 93/37/EEC, and more specifically Article 7 (3)(a) thereof, have been observed in the award procedure for the contract in question.

On the basis of the information provided in the Written Question, the Commission will contact the Portuguese authorities to obtain information from them that will enable it to conduct a detailed examination of this case.

(1) OJ L 199, 9.8.1993, p. 54.