Education Update - Procurement
Published: 18th December 2009
Specifications
The Province of Noord-Holland conducted an open
tender procedure, under Directive 2004/18 (the Public Contracts
Directive) for a contract for the supply and management of coffee
machines. The Commission considers that the award procedure did not
comply with the requirements of Directive 2004/18 in a number of
respects:
1 Technical specifications.
The tender documents specified the supply of tea and coffee bearing
only one or two specific labels for biological and ethically traded
products. This is not permissible under Article 23 of Directive
2004/18. It was stated that the contracting authority would accept
comparable brands or products that met the same or comparable
criteria. However, the tender was not sufficiently transparent as
it did not indicate the criteria on which the comparability of
products would be judged.
2 Selection criteria.
The contracting authority did not select bidders only on the basis
of the list of selection criteria contained in Article 48 of
Directive 2004/18. Further, it was not clear on what basis, and on
which criteria, bidders would be selected. This constitutes a
breach of transparency.
3 Award criteria.
The Commission considers that the contracting authority breached
the requirements relating to award criteria. It used an award
criterion under which additional credit was given to tenderers that
offered ingredients (sugar and milk) that have a specific fair
trade or eco-label, or a comparable label. The Commission does not
consider that such a criterion can validly be used to identify the
most economically advantageous offer.
The Ombudsman's thoughts on Frameworks
Commission framework challenge 1895 / 2007
(Videoconference)
This was a decision of the European Ombudsman. Although not legally binding, his opinions are capable of being used in Court proceedings and the pronouncements of the Ombudsman often give us a glimpse of how the law will evolve in future.
In this case, it was noted that Specific contracts concluded under a framework contract cannot extend beyond the term of the framework contract itself. Further, while specific contracts cannot extend beyond the term of the framework contract, specific contracts need not cover the entire term of the framework contract. It is entirely within the Commission's discretion to decide whether or not it needs to enter into a specific contract. A framework contract gives the Commission the possibility of entering into specific contracts, but does not oblige it to do so. In addition, the fact that the Commission entered into specific contracts for the provision of a certain service for a certain time period, does not imply any obligation to enter into such contracts for other periods of the framework contract.
Therefore, even though the term of the Videoconference Contract was extended, this only implied that there was a possibility, but not an obligation, to enter into a new specific contract for the management of videoconference services until this new term. The Commission had no obligation to conclude new specific contracts with company A for the management of videoconference services.
The Ombudsman noted that unless a framework contract grants exclusivity rights to a contracting party, the fact that the provision of a particular product or service may fall within the scope of one framework contract does not prevent the inclusion of identical products or services in a separate framework contract in place at the same time.
