Download the document (PDF file) - Public Procurement Network

Although the Spanish procurement law contains
some exceptions to the general rules on warranties,
this exceptions exist under Spanish law and cannot
be invoked as grounds for a complaint before the
European Commission”.
On these grounds the Commission closed the file.
Example 24:
Change of the type of procedure during the
procurement process and close involvement of
one bidder prior to the call for competition
A company, agent in Sweden for a German producer
of windmills, was granted the right to make
a call for competition for the supply on behalf of
the contracting entity. It seems that from the outset
the open procedure according to the Utilities
Directive had been chosen, but during the course
of events had changed into a procedure with negotiation.
A Danish company complained (only few days
before expiry of the deadline for submission of
offers) to the Danish contact point about the fact
that there were strong indications to the effect that
the German producer had been involved quite
extensively in the preparations for the windmill
project, and that there was, therefore, a big risk
that there would be no real competition on an
equal footing for the contract. Both the Danish
and German producers had submitted offers. The
value of the contract was quite spectacular.
The problems were: a) change of the type of procedure
during the procurement process, and b) the
close involvement prior to the call for competition
of one bidder having demonstrated his commercial
interest in the procurement by the submission of
an offer.
The Danish contact point approached immediately
its Swedish counterpart which came to the conclusion
that there were limits as to its possibilities to
intervene in order to change the course of the
award procedure; for this, the company had to go
to court. On this background, the Danish contact
point authority asked the Commission about its
view, and the following day the Commission services
responded that they would initiate an art. 226
(169) procedure against Sweden. Very shortly after,
a meeting was held with the Swedish Finance
Department which took the initiative to arrange a
meeting with the company charged with the carrying
out of the actual procurement procedure. This
meeting resulted apparently in an understanding
with the company to postpone its decision on the
award of the contract.
Nevertheless, the Danish contact point learnt from
the Swedish Finance Department that the competing
supplier was going to sign the contract. Under
these circumstances, the Danish supplier who had
complained lodged a complaint before the competent
Swedish court which immediately decided to
suspend the procedure for the award of the contract.
From that point, the case was out of the hands of
the cross-border problem-solving network. During
the period when the case was pending at the court,
some changes of the whole set-up occurred, and
the project was cancelled.
34