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Re: III.4.The method is also useful in connection with matters open to question Example 21: Hospital authorities' procurement of X-ray analysis equipment Re: IV. The Commissions role in cross-border problem-solving co-operation Example 22: Alleged national preferences in contract documents and lack of clarity in the award criteria Example 23: Rejecting of an offer on the grounds that the bank warranty was provided in English (and not in Spanish or together with a translation in Spanish) Example 24: Change of the type of procedure during the procurement process and close involvement of one bidder prior to the call for competition Re: V. European/EU institutions are obliged to comply with the public procurement rules Example 25: Complaint about the EU Commission's award of contract for supervision and control of food aid Example 26: Translation into Community languages in tender documentation from the European Parliament The examples Re: I.1. The objective is equal competition conditions Example 1: Criterion for the award of contract of 2 years' representation in the state in which the contract should be executed A Norwegian contracting entity carried out a call for tenders for the supply of electrical equipment under the utilities directive. In the contract documents sent to a selected Danish candidate, the Norwegian contracting entity included in the criteria on which it would base the award of contract that the tenderers should be represented in Norway and, moreover, had been represented there during the last 2 years. The Danish candidate which had no fixed representation in Norway and found it groundless to apply such a criterion in this procedure - especially after the candidates had been selected - asked the Danish contact point for assistance to get this criterion withdrawn by the contracting entity. Taking into account the Treaty's prohibition against restrictions on the free movement of goods, a criterion of 2 years' representation in the state in which the contract shall be executed is unacceptable. Even a criterion of after-sales establishment in that state would not be acceptable as long as the relevant demand for service and technical assistance etc. is met in any other way. 21
The Danish contact point authority approached the Norwegian contact point concerning the case. The Norwegian contact point authority immediately took contact to the contracting entity which admitted lack of exact knowledge of the rules of the utilities directive. A meeting between the Norwegian contact point authority and the contracting entity was held with the object of clearing out the misunderstandings. Finally, a corrective to the contract documents stating the withdrawal of the illegal criteria was sent to all the selected candidates by the contracting entity. At the same time a 2 weeks' postponement of the time limit for the receipt of tenders was fixed. Thus, the procurement procedure was legalised in a pragmatic, smooth manner, thereby avoiding both a formal complaint procedure and any possible conflictual atmosphere likely to characterise a case being pursued through the formal complaints procedure channels. Information about the outcome of the procurement procedure as to the award of the contract is not registered. Example 2: Sealing of containers for foodstuffs to be shipped in the context of EU Food Aid Policy A Danish company complained to its contact point about specific requirements in a number of calls for tenders launched by the Commission concerning the sealing of the foodstuff containers to be shipped under the EU Food Aid programme. The requirements were based on reference to a sealing product of a particular make and therefore eliminated all other products. As it - according to the procurement rules on technical specifications - is prohibited to indicate trade marks, types etc., unless such indication is accompanied by the words "or equivalent" in cases where the contracting authorities are unable to give a description of the subject of the contract using specifications which are sufficiently precise and fully intelligible to all parties concerned, the Danish contact point addressed the competent Commission services concerning the case. The Commission services very quickly replied that they had not been aware, so far, of the existence of alternative sealing products on the market. They promised that in future calls for tenders, this would be taken into account in the drafting of the tender notices. As this reaction was considered very satisfying by the company having complained, the case was closed as a successful solution of a cross-border problem. Re: I.2. The interest of the company is in focus - not control of the procurement procedure itself Example 3: Requirement that all products should be delivered from the same factory during the entire contract period A Danish company complained to its national contact point about the requirements set out in a call for tenders (open procedure) made under the supplies directive by a Swedish contracting authority. In its complaint, the company i.a. referred to a requirement that all products should be delivered from the same factory during the entire contract 22
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