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IP/06/443

Brussels, 4 April 2006

Public procurement: Commission takes action against Spain to correct breaches of EU law

The European Commission has taken action against Spain to correct breaches of EU public procurement law in three cases. Firstly, the Commission has sent Spain a further request to submit its observations on the new law on land-and-town planning of the Valencia Community (known as "LUV"). Secondly, the Commission has asked Spain to submit its observations on the procurement of computer equipment using technical specifications that could be discriminatory. In both cases, the Commission's request takes the form of a letter of formal notice, the first stage of infringement procedures under Article 226 of the EC Treaty. The Spanish authorities have two months to respond to these two requests. Finally, the Commission has sent Spain a formal request regarding the award of a contract for school bus services in the Valencia Community. This request takes the form of a reasoned opinion, the second stage of the infringement procedures under Article 226 of the EC Treaty. If there is no satisfactory reply within two months, the Commission may refer the case to the European Court of Justice.

The open and transparent tendering procedures required under EU public procurement law mean more competition, stronger safeguards against corruption, and better service and value for money for taxpayers.

Law 16/2005 on land-and-town planning of the Valencia Community (Ley Urbanística Valenciana - LUV)

The Commission has already sent a letter of formal notice and reasoned opinion (IP/05/1598, 14 December 2005) to Spain regarding law 6/1994 on land-and-town planning (LRAU) of Valencia, where the Commission took the view that the award of integrated action programmes (Programas de Actuación Integrada – "PAI") in accordance with the LRAU constitutes a public works contract and must therefore comply with the provisions of EU public procurement Directives 93/37/EEC and 92/50/EEC (now consolidated and amended by Directive 2004/18/EC) and certain general principles of the EC Treaty. PAI are awarded by local authorities and include the provision of services and performance of public infrastructure works.

On 22 December 2005, the Valencia Regional Parliament adopted law 16/2005 (LUV) that repeals and replaces law 6/1994 (LRAU). The Commission considers that the new law may not correct some of the infringements that were raised in relation to the LRAU, particularly as regards the contents of tender notices and contract documents for the award of PAI, and the possibility to increase the contract price after the selection of a property developer (agente urbanizador). The Commission also observes that other aspects of the procedure to select property developers (agentes urbanizadores) may not comply with the EU public procurement Directives.

These include the contents of proposals to launch a PAI, submission and contents of offers, admissibility of variants, award criteria, and the possibility to amend parts of the contract and/or the winning project after the award. Finally, the Commission notes that the Spanish authorities have not complied with previous warnings and have continued to award contracts based on the LRAU until 1 February 2006, in violation of the EU public procurement Directives.

Discriminatory technical specifications in supply contracts for computers

The Commission has decided to send a letter of formal notice to Spain, formally asking for information on the procurement of computers using technical specifications that refer to Intel-trademarked microprocessors, or require microprocessors with a minimum clock-rate.

The Commission has received information about twenty-five invitations to tender issued by public authorities at all levels of the administration (central, regional, local and independent bodies) procuring a variety of computer equipment such as PCs, laptops, and servers. These must contain specific types of Intel-branded microprocessors, or "Intel or equivalent" microprocessors, or microprocessors with a minimum clock-rate. The Commission considers that these technical specifications may be discriminatory and inconsistent with Directive 93/36/EEC (now amended and consolidated by Directive 2004/18/EC). Under the EU public procurement rules, contracting authorities may refer to a brand name to describe a product only when there are no other possible descriptions that are both sufficiently precise and intelligible to potential tenderers. In this case, however, the microprocessors may be described in a precise and intelligible manner using references such as the type of the microprocessor, and its required performance. The performance of microprocessors may be evaluated using appropriate benchmarks, which have been developed by industry consortia or third-party independent benchmarking firms to assess the performance of microprocessors. The use of a minimum clock-rate is discriminatory in relation to certain brands of microprocessors whose performance can only be appraised fairly by adding the IPC (Instructions executed Per Clock) to the clock-rate.

With this letter of formal notice, the Commission extends its infringement proceedings regarding the procurement of computer equipment incorporating Intel-branded microprocessors to Spain. The Commission has already sent similar letters of formal notice to a number of other EU member states, including France, Germany, Finland, Italy, The Netherlands, and Sweden (see press release IP/04/1210, 13 October 2004).

Award of a contract for school bus services in Valencia

The Commission has decided to send a reasoned opinion to Spain regarding the award of a contract for school bus services in the province of Valencia. The contract, with a total value of more than 17 million euros, was divided into 184 lots, one per school bus route. Contracts for all the lots were awarded using negotiated procedures with publication of a tender notice and accelerated deadlines. The Commission considers that the choice of tender procedure was wrong and infringed Directive 92/50/EEC (now amended and consolidated by Directive 2004/18/EC) because the circumstances of the contract did not justify using the negotiated procedure. Similarly, the provision of a shortened deadline of 15 days to submit offers was unjustified, in light of the circumstances of the contract.

Furthermore, the contracting authority used the advice of two local transport associations to select tenderers invited to submit offers, in circumstances that did not guarantee that the two transport associations would act objectively, independently of their interests, and in compliance with the EU rules. Finally, there was confusion between selection and award criteria in the tender documents and some of the award criteria did not comply with the requirements of equal treatment or proportionality.
The latest information on infringement proceedings concerning all Member States is available at:

http://ec.europa.eu/secretariat_general/sgb/droit_com/index_en.htm


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