WRITTEN QUESTION P-1170/04 by Manuel dos Santos (PSE) to the Commission. Construction of the Amoreiras tunnel in Lisbon.
Date: 2004-04-13
Institutions: European Parliament, Provisional data
Subjects: Portugal, application of EU law, award of contract, invitation to tender, negotiated contract, restriction on competition, works contract

3.4.2004

EN

Official Journal of the European Union

C 84 E/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:

(cid:1) the building work would overlap with other infrastructure and those submitting tenders should offer

solutions to divert such infrastructure;

(cid:1) 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;

(cid:1) 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
the specifications for the
examining the proposals in this context
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 (cid:1) Constucções e Manutenção Electromecânica S.A., which in their proposal
impact on
removed essential construction tasks from the context of the contract, with a substantial
infrastructure.

the Commission decided that

In view of all this, can the Commission say:

(cid:1) 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,

(cid:1) 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?

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

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.

C 84 E/956

Official Journal of the European Union

EN

3.4.2004

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
to conduct a detailed
Portuguese authorities to obtain information from them that will enable it
examination of this case.

(2004/C 84 E/1055)

WRITTEN QUESTION P-1203/04

by Gianfranco Dell’Alba (NI) to the Commission

(14 April 2004)

Subject: Suspected irregularities in the management of European Development Fund (EDF) resources for

Project 8.ACP.PNG.003

1. With regard to the contract award procedure used to select the undertaking to replace the original
consultant (Studio Bichara Srl (‘SB’)) in the services contract in question, can the Commission indicate why:

(a) no international restricted invitation to tender was launched, despite the contract being of a value in
excess of EUR 200 000, and a local invitation to tender was opted for instead (see the Common
Service for External Relations manual of procedures (cid:1) paragraph 10 and Annex (cid:1) applicable at the
time of the events in question);

(b) no suspicion was aroused by the fact that the participants in the tender procedure (which differed
enormously in terms of size and financial capacity) submitted tenders in excess of the maximum
available budget when some of them had also participated in the original 1999 procedure and
submitted tenders below the level of available resources;

(c)

the contract was subsequently awarded (by direct agreement) to the companies PAC and ETS, contrary
to Article 12(2) of the General Conditions for services contracts financed by the EDF, when PAC/ETS
had, moreover, been declared ineligible in respect of another EU project in the Republic of Vanuatu?

2.
Concerning the contracts awarded after the cancellation of the contract with SB why, following the
criticisms levelled by PAC/ETS itself at the Unitech plans drawn up by SB, was management of the works
originally envisaged by SB awarded to PAC/ETS for an amount of around EUR 772 000, as opposed to the
EUR 660 000 originally agreed with SB for the same services, on top of around EUR 100 000 for
supplementary services and a rider amounting to around EUR 420 000 relating solely to the new plans for
the Unitech institute (as opposed to the EUR 600 000 agreed with SB for the plans for all 9 of the
institutes covered by the project)?

Answer given by Mr Nielson on behalf of the Commission

(30 April 2004)

1. (a)

Project 8.ACP.PNG.003 was financed under the 8th European Development Fund (EDF). The main
legal base is Decision No 3/90 of the ACP-EEC Council of Ministers of 29 March 1990 adopting the
general regulations, general conditions and procedural rules on conciliation and arbitration for works,
supply and service contracts financed by the EDF and concerning their application (1).

The EUR 200 000 limit is based on Decision No 2/2002 of 7 October 2002, which covers the
implementation of Annex IV of the Cotonou Agreement. It applies to service contracts under the
9th EDF and not contracts under the 8th EDF.