(2004/C 33 E/019)

WRITTEN QUESTION P-3365/02

by Brian Crowley (UEN) to the Commission

(20 November 2002)

Subject:   AFCon Management Consultants, Ireland, and denial of Services Contract TACIS FDRUS 9902

What is the Commission's view on the case being pursued by AFCon Management Consultants, Ireland, for redress with regard to the improper denial to it by the Commission of the Services Contract TACIS FDRUS 9902?

Why has the Commission refused to consider AFCon's proper entitlement to the contract award due to it being in no worse than second position after the mis-award of technical marks to the ‘winning’ tenderer; the basis on which the Commission continues to disregard the finding on the matter which is in AFCon's favour and what are the Commission's views on the poor implementation of the project?

Will the Commission seek an early and amicable settlement of the case brought by AFCon and will the Commission make a general statement on the matter?

Answer given by Mr Patten on behalf of the Commission

(23 December 2002)

With regard to the Tender FDRUS 9902 — Agricultural Extension Services in South Russia, the Commission does not share AFCon's view that it has been improperly denied the award of the contract. Furthermore, the tender provisions do not foresee the possibility of compensation for tenderers who have not been awarded the contract. Therefore the Commission does not accept any claim for compensation.

Tender FDRUS 9902 was launched at the time when the Commission did not apply any specific rules in the standard tender dossier to prohibit the inclusion of fees under reimbursable expenses. Indeed, the tender dossier FDRUS 9902 was not specific in this regard and therefore open to different interpretations. The winning tenderer and AFCon adopted two different approaches for the presentation of their offers, both of which were acceptable according to tendering rules valid at the time of tender.

The contract was awarded to the economically most advantageous offer, which was defined as the tender that presented the best ratio of quality to price (i.e. mix of technical and financial elements — respectively with a weight of 70 % and 30 %). The financial evaluation was carried out on the basis of the total prices of the offers including Fees, Per Diem, Direct Expenses and Reimbursable Expenses.

The winning tenderer was recommended as the best bidder and awarded the contract as per TACIS tender rules.

AFCon has employed the O'Connor and Company Law Firm to assist them in a claim for compensation. At Mr O'Connor's request, a meeting took place on 4 September 2002 between Mr O'Connor and the Commission to allow both AFCon's lawyer and the Commission to exchange views about AFCon claims.

As far as the implementation of the project is concerned, the Commission is aware of difficulties arising from a lack of co-operation from the local partner and the local government. As a result, there has been a distinct lack of progress in project implementation. The Commission, therefore, has undertaken the necessary measures to modify the project activities in order to reach the remaining objectives and to ensure its sustainability.