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cable to service contracts) apparently prescribes
that, as a rule, the negotiated procedure according
to the Services Directive shall be used for contracts
concerning consultancy services in connection
with construction projects. The question was
raised as a matter of principle and not as a concrete
procurement case.
The case was under the headline of the Pilot
Project sent to the Commission. It turned out that
the Commission had received other cases concerning
this legislation. A letter was addressed by the
Commission to the complaining contact point. It
appears that VOF under German law only applies
if the service which is to be performed is of such a
nature that the agreement cannot be specified sufficiently
exactly for it to be entered into by choosing
the best tender under the rules governing
public or restricted procedure. In these cases the
contracting authorities may enter into agreements
by negotiated procedure with prior publication of
a procurement notice under Article 11 (2c) of the
public Services Directive. According to the Commission
there is, therefore, no basis for maintaining
that VOF contravenes the rules laid down in
the Services Directive.
The Commission points out that, in Germany,
contracts for consulting architects and engineering
services are, in practice, automatically regarded as
being of the nature set out in Article 11 (2c). The
Commission is examining some specific cases
where arguments are adduced that the conditions
for using the exemption clauses in question have
not been fulfilled.
Against this background the Commission has
downgraded the consideration of the complaint
sent under the Pilot Project, as this complaint did
not concern a specific case. The Commission will
inform the complaining contact point about the
progress of the above-mentioned specific cases,
which p.t. still are under consideration by the
Commission.
Re: III.3.The method is most effective in connection
with pre-contract problems
Example 20:
Complaint from a Danish company about three
contracts awarded by Norwegian contracting
authorities/entities
The complaint concerned in all the three cases the
fact that the call for tenders allegedly had been
planned with the involvement of a national supplier
- who also won the contracts. It was held by
the complainant, therefore, that there was no real
competition, nor equality of treatment in the procurement
procedures.
In the first case, the problem was whether the technical
specifications were given so that only the
national supplier in practice could comply with
them. This was not clearly found.
The second case represented a mix of technical
development and procurement. It was not completely
clear, how the public procurement rules
were applied. The conclusion was that there probably
had been a violation of the rules in this case.
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