Romanian National Council for the Resolution of Complaints (CNSC) has admitted the complaint advanced by a rolling stock manufacturer against the attribution documentation and consequently forced Bucharest Municipality to suspend the public procurement procedure until the resolution of the complaint.
Thus, Bucharest Municipality (PMB) is required to modify the restrictive deadline of 45 days until the deadline for submitting bids until which the bidders are entitled to require clarifications and consequently to permit addressing clarifications by bidders by up to 20-25 days prior to the deadline for submitting bids, so that the procedure for the clarifications of the attribution documentation would be useful.
The complainer asks PMB to extend the restrictive delivery deadline in the first contractual year currently set to nine months since signing the contract, and the homologation deadline, currently set to three months since delivery.
Another request is to replace the minimum threshold for similar experience of RON 28 million (EUR 5.9 million) which is permissive and lacking all relevance, with a superior threshold that would reflect the actual capacity of economic operators to execute a public procurement contract whose value (estimated at RON 845,687,394 – around EUR 180 million) and complexity are a lot more superior to those resulted from the experience thus imposed to participants.
Also, the company which submitted the complaint believes that the deadlines imposed by the tram delivery programme are unreasonably short.
The minimum delivery programme required by PMB stipulates that one tram should be delivered in the first year of the contract, 48 trams in the second and third years of the contract and 3 trams in the last year of the contract.
Moreover, the complainer believes that the critical point is mostly represented by the fact that the winner of the tender has to deliver the first tram in no more than nine months after signing the contract and to homologate it, at its own expense, in less than 3 months since delivery. If not, the contract will be terminated. Delivery and homologation deadlines are very short if considering the technical specifications that trams have to meet.
“The trams to be delivered within the contract are not standard, they will be customised according to the technical requirements imposed by Bucharest Municipality in the tender book which, of course, will involve a significantly longer period of time for construction and configuration; in fact, the production and configuration of trams according to the documentation make it impossible to observe the delivery and homologation deadlines”, says the complainer.
The complainer arguments its critics by several reference statements from which it results that “nowhere in Europe, the delivery and homologation of a tram is required in just 12 months, this deadline (for delivery and homologation) being usually set for 2 to 3 years”.
Therefore, the European rolling stock manufacturer which contested the tender procedure gives several relevant examples:
- In November 2018, Chemnitz received trams from Skoda, ordered in 2016
- In December 2018, Munich put into operation the Avenio trams manufactured by Siemens, ordered in 2015
- Vienna ordered the Ulf trams from Siemens in the spring of 2004 and the first tram began operation in December 2006
- On 1 December 2016, Bern launched a tender for the procurement of 50 low-floor trams. The contract is expected to be signed at the end of 2019 and the delivery of trams is estimated for 2023-2024
- In December 2018, Wiener Lokatbahn signed a contract with Bombardier for the procurement of 18 trams with delivery starting with 2021
- Berlin BKW announced signing an additional contract with Bombardier for the procurement of 21 trams with delivery in July 2020 – May 2021, as part of a framework contract for the procurement of 210 trams, launched in 2006. The additional contract was signed because a new tender would have generated the delivery of trams in 2026.
The complainer believes that the delivery and homologation deadline should be extended to at least 2 years for the first tram so that the first tram could be delivered in 2 years and homologated in one year after delivery.
In turn, Bucharest Municipality, in the answer given to CNSC believes that the request regarding the suspension of the public procurement procedure is reasonless and emphasises that the complainer does not have arguments to support the reasons for which the procedure should be suspended.
Moreover, PMB says that “suspending the procedure will have negative consequences for Bucharest by causing damages to public interest considering that the current and immediate needs and expectations of developing and modernising public transport services are urgent and the opportunity of implementing this project as soon as possible is a major objective.
The suspension of the procedure causes serious prejudice to the contracting entity and public interest by unreasonably extending the procurement procedure, the 2.5 million residents of Bucharest and the 1.5 million daily commuters cannot benefit from the improvement of public transport which would have been possible by putting into operation the trams subject to the procurement procedure”.
After analysing the complaint submitted by the rolling stock manufacturer and PMB’s response, the Romanian National Council for the Resolution of Complaints pointed out that “the critics against the tender documentation have created an obvious doubt regarding the legality of some aspects which could affect the presumption of legality of each administrative act”.
Consequently, CNSC decided to suspend the attribution procedure until the complaint is resolved.