WRITTEN QUESTION E-2798/02

by Caroline Lucas (Verts/ALE) to the Commission

(7 October 2002)

Subject: Public procurement: price renegotiation

Could the Commission confirm that a utility, subject to the procurements rules set forth in Directive 93/38/EEC(1) may not renegotiate prices or other fundamental aspects of a tender with only one bidder, after it has terminated the competitive stage of the relevant procurement process, regardless of whether it is employing the negotiated procedure or otherwise?

(1) OJ L 199, 9.8.1993, p. 84.

Answer given by Mr Bolkestein on behalf of the Commission

(29 October 2002)

A distinction must, first of all, be made between open and restricted procedures, on the one hand, and negotiated procedures, on the other. In respect of the former two procedures, no real negotiations may take place as this was explained in a joint Commission and Council declaration which was published together with the first Utilities Directive, Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors(1). The declaration reads as follows: The Council and the Commission state that in open and restricted procedures all negotiation with candidates or tenderers on fundamental aspects of contracts, variations in which are likely to distort competition, and in particular on prices, shall be ruled out; however, discussions with candidates or tenderers may be held but only for the purpose of clarifying or supplementing the content of their tenders or the requirements of the contracting entities and provided this does not involve discrimination.

When using a negotiated procedure with a call for competition, this principle of substantially unchangeable tenders does not apply, precisely because the procedure allows for substantial changes to tenders during the negotiations. As the Directive does not lay down any detailed provisions regarding the conduct of a negotiated procedure, the determination of what is or is not possible must be based on an evaluation of whether the underlying principles of equal treatment, non-discrimination and transparency have been observed. This implies for instance that any modification or new element should respect the parameters of the tender notice and the contract documents, as these have been defined by the contracting authority. In addition, tenderers should be treated equally; the contracting authority should not, for example, discriminate by providing information which may give some tenderers an advantage over others or to allow some tenderers more latitude when proposing modifications over others. Finally, the contract to be signed should not present characteristics which are fundamentally different from those initially published. To assess whether these principles were adhered to is therefore a matter to be evaluated taking into account the specifics of each individual case. It is therefore not possible to determine in the abstract whether each and any change to prices or other elements that are agreed with the preferred bidder in a negotiated procedure constitute a violation of these principles.

(1) OJ L 297, 29.10.1990 subsequently replaced by the current Utilities Directive, Council Directive 93/38/EEC of 14 June 1993, OJ L 199, 9.8.1993, which is unchanged on this issue.