Services - 280996-2022

25/05/2022    S101

Denmark-Copenhagen: Architectural, construction, engineering and inspection services

2022/S 101-280996

Modification notice

Modification of a contract/concession during its term

Legal Basis:
Directive 2014/24/EU

Section I: Contracting authority/entity

I.1)Name and addresses
Official name: Femern A/S
National registration number: 28986564
Postal address: Vester Søgade 10
Town: Copenhagen
NUTS code: DK011 Byen København
Postal code: 1601
Country: Denmark
Contact person: Anne Bøgh Johansen
E-mail: ajo@femern.dk
Internet address(es):
Main address: www.femern.com

Section II: Object

II.1)Scope of the procurement
II.1.1)Title:

Framework Agreement on Environmental Advisor

II.1.2)Main CPV code
71000000 Architectural, construction, engineering and inspection services
II.1.3)Type of contract
Services
II.2)Description
II.2.2)Additional CPV code(s)
71311300 Infrastructure works consultancy services
71313000 Environmental engineering consultancy services
71313420 Environmental standards for construction
71313430 Environmental indicators analysis for construction
71313440 Environmental Impact Assessment (EIA) services for construction
71313450 Environmental monitoring for construction
71520000 Construction supervision services
71621000 Technical analysis or consultancy services
90710000 Environmental management
90720000 Environmental protection
II.2.3)Place of performance
NUTS code: DK01 Hovedstaden
NUTS code: DK022 Vest- og Sydsjælland
Main site or place of performance:

København. Rødbyhavn

II.2.4)Description of the procurement at the time of conclusion of the contract:

On 17 April 2014 the contract notice (no 2014/S 076-131973) concerning the Framework Agreement for Environmental Advisor, was published in TED. The framework agreement was awarded to the Consortium Fehmarnbelt Environmental Monitoring and Consultancy (FEMO), and the contract award notice (no 2015/S 013-019599) was published on 20 January 2015. This notice concerns Femern A/S' intention to prolong the existing framework agreement between Femern A/S and Consortium FEMO until 31 December 2029 (where the construction of the Fixed Link across the Fehmarn Belt is expected to be finalized), though at least until the finalization of the Fixed Link (as was the original intention with the procurement, cf. the contract notice). After this (and the expiry of stand still as stated in notice no 2022/S 067-178300) the framework agreement has been prolonged. This notice concerns the prolongation of the existing framework agreement, cf. VII.2.1) and VII.2.2).

According to the contract notice (no 2014/S 076-131973) and the initial contract award notice (no 2015/S 013-019599) the existing Framework Agreement covers Environmental Advisory. For further information please see contract notice no 2014/S 076-131973 section II.1.4).

II.2.7)Duration of the contract, framework agreement, dynamic purchasing system or concession
Start: 28/11/2014
End: 31/12/2021
In the case of framework agreements, provide justification for any duration exceeding 4 years:

According to the contract notice (no 2014/S 076-131973) the framework agreement should cover environmental consultancy in the final design and construction phases and the replacement of the environmental consultant in such a complex infrastructure project as the Fixed Link across the Fehmarn Belt could cause significant problems for the project.

II.2.13)Information about European Union funds
The procurement is related to a project and/or programme financed by European Union funds: yes
Identification of the project:

The Fehmarnbelt Fixed link - TEN-T programme 2014-EU-TM-0221-W (previously 2007-EU-20050-P).

Section V: Award of contract/concession

Contract No: 1
V.2)Award of contract/concession
V.2.1)Date of conclusion of the contract/concession award decision:
28/11/2014
V.2.2)Information about tenders
The contract/concession has been awarded to a group of economic operators: yes
V.2.3)Name and address of the contractor/concessionaire
Official name: DHI
National registration number: 37057819
Postal address: Agern Alle 5
Town: Hørsholm
NUTS code: DK013 Nordsjælland
Postal code: 2970
Country: Denmark
The contractor/concessionaire is an SME: no
V.2.3)Name and address of the contractor/concessionaire
Official name: BioConsult SH GmbH & Co. KG
Postal address: Schobüller Str. 36
Town: Husum
NUTS code: DEF0 Schleswig-Holstein
Postal code: 25813
Country: Germany
The contractor/concessionaire is an SME: no
V.2.3)Name and address of the contractor/concessionaire
Official name: Marilim Gesellschaft fur Gewasseruntersuchung mbH
Postal address: Heinrich-Wöhlk-Straße 14
Town: Schönkirchen
NUTS code: DEF0 Schleswig-Holstein
Postal code: 24232
Country: Germany
The contractor/concessionaire is an SME: no
V.2.3)Name and address of the contractor/concessionaire
Official name: Orbicon A/S
National registration number: 21265543
Postal address: Linnés Alle 2
Town: Høje Taastrup
NUTS code: DK012 Københavns omegn
Postal code: 2630
Country: Denmark
The contractor/concessionaire is an SME: no
V.2.4)Information on value of the contract/lot/concession (at the time of conclusion of the contract;excluding VAT)
Total value of the procurement: 300 000 000.00 DKK

Section VI: Complementary information

VI.3)Additional information:

In regard of section V.2.4) it is noted the value stated is the initial estimated value (DKK 300,000,000 cf. contract notice and initial contract award notice).

The total value of the framework agreement is estimated to DKK 525,000,000 (including the prolongation). The value stated in section VII.1.6) is the value that exceeds the initial estimated value, i.e. DKK 225,000,000. It is noted that part of the amount, that exceeds the initial estimated value (DKK 300,000,000, cf. contract notice), represents indexation and is therefore not in fact an actual modification of the framework agreement’s value. The increase in price is stated in section VII.2.3).

VI.4)Procedures for review
VI.4.1)Review body
Official name: Klagenævnet for Udbud (The Danish Complaints Board for Public Procurement)
Postal address: Nævnenes Hus, Toldboden 2
Town: Viborg
Postal code: 8800
Country: Denmark
E-mail: klfu@naevneneshus.dk
Telephone: +45 72405600
Internet address: https://klfu.naevneneshus.dk/
VI.4.3)Review procedure
Precise information on deadline(s) for review procedures:

According to the Danish Act on the Complaints Board for Public Procurement, etc. (lov om Klagenævnet for Udbud m.v.) (the Act is available (in Danish) at www.retsinformation.dk), complaints can be lodged with Klagenævnet for Udbud (The Danish Complaints Board for Public Procurement).

Complaints must be submitted to The Danish Complaints Board for Public Procurement before the expiry of 30 calendar days, see section 7(3) of the Act, from the day after the contracting entity has published a notice in the Official Journal of the European Union that the contracting entity has entered into a contract if the notice includes an explanation of the grounds for the decision.

Not later than at the time of lodging a complaint with The Danish Complaints Board for Public Procurement, the complainant must notify the contracting entity in writing that a complaint has been lodged with The Danish Complaints Board for Public Procurement and whether the appeal was lodged during the standstill period.

The e-mail address of The Danish Complaints Board for Public Procurement is set out in section VI.4.1).

The Danish Complaints Board for Public Procurement’s complaints procedure is available at https://naevneneshus.dk/start-din-klage/klagenaevnet-for-udbud/vejledning/

VI.4.4)Service from which information about the review procedure may be obtained
Official name: Konkurrence- og Forbrugerstyrelsen (The Danish Competition and Consumer Authority)
Postal address: Carl Jacobsens Vej 35
Town: Valby
Postal code: 2500
Country: Denmark
E-mail: kfst@kfst.dk
Telephone: +45 41715000
Internet address: www.kfst.dk
VI.5)Date of dispatch of this notice:
20/05/2022

Section VII: Modifications to the contract/concession

VII.1)Description of the procurement after the modifications
VII.1.1)Main CPV code
71000000 Architectural, construction, engineering and inspection services
VII.1.2)Additional CPV code(s)
71311300 Infrastructure works consultancy services
71313000 Environmental engineering consultancy services
71313420 Environmental standards for construction
71313430 Environmental indicators analysis for construction
71313440 Environmental Impact Assessment (EIA) services for construction
71313450 Environmental monitoring for construction
71520000 Construction supervision services
71621000 Technical analysis or consultancy services
90710000 Environmental management
90720000 Environmental protection
VII.1.3)Place of performance
NUTS code: DK01 Hovedstaden
NUTS code: DK022 Vest- og Sydsjælland
Main site or place of performance:

København. Rødbyhavn

VII.1.4)Description of the procurement:

On 17 April 2014 the contract notice (no 2014/S 076-131973) concerning the Framework Agreement for Environmental Advisor, was published in TED. The framework agreement was awarded to the Consortium Fehmarnbelt Environmental Monitoring and Consultancy (FEMO), and the contract award notice (no 2015/S 013-019599) was published on 20 January 2015. By voluntary ex ante transparency notice (no 2022/S 067-178300) Femern A/S announced Femern A/S intention to prolong the existing framework agreement between Femern A/S and Consortium FEMO until 31 December 2029 (where the construction of the Fixed Link across the Fehmarn Belt is expected to be finalized), though at least until the finalization of the Fixed Link (as was the original intention with the procurement, cf. the contract notice). After this (and the expiry of stand still as stated in notice no 2022/S 067-178300) the framework agreement has been prolonged. This notice concerns the prolongation of the existing framework agreement, cf. VII.2.1) and VII.2.2).

VII.1.5)Duration of the contract, framework agreement, dynamic purchasing system or concession
Start: 28/11/2014
End: 31/12/2029
In the case of framework agreements, provide justification for any duration exceeding 4 years:

According to the contract notice (no 2014/S 076-131973) the framework agreement should cover environmental consultancy in the final design and construction phases and the replacement of the environmental consultant in such a complex infrastructure project as the Fixed Link across the Fehmarn Belt could cause significant problems for the project.

VII.1.6)Information on value of the contract/lot/concession (excluding VAT)
Total value of the contract/lot/concession: 225 000 000.00 DKK
VII.1.7)Name and address of the contractor/concessionaire
Official name: DHI
National registration number: 37057819
Postal address: Agern Alle 5
Town: Hørsholm
NUTS code: DK013 Nordsjælland
Postal code: 2970
Country: Denmark
The contractor/concessionaire is an SME: no
VII.1.7)Name and address of the contractor/concessionaire
Official name: BioConsult SH GmbH & Co. KG
Postal address: Schobüller Str. 36
Town: Husum
NUTS code: DEF0 Schleswig-Holstein
Postal code: 25813
Country: Germany
The contractor/concessionaire is an SME: no
VII.1.7)Name and address of the contractor/concessionaire
Official name: Marilim Gesellschaft fur Gewasseruntersuchung mbH
Postal address: Heinrich-Wöhlk-Straße 14
Town: Schönkirchen
NUTS code: DEF0 Schleswig-Holstein
Postal code: 24232
Country: Germany
The contractor/concessionaire is an SME: no
VII.1.7)Name and address of the contractor/concessionaire
Official name: Orbicon A/S
National registration number: 21265543
Postal address: Linnés Alle 2
Town: Høje Taastrup
NUTS code: DK012 Københavns omegn
Postal code: 2630
Country: Denmark
The contractor/concessionaire is an SME: no
VII.2)Information about modifications
VII.2.1)Description of the modifications
Nature and extent of the modifications (with indication of possible earlier changes to the contract):

This notice concerns the prolongation of the existing framework agreement for Environmental Advisory Services between Femern A/S and FEMO until 31 December 2029 (where the construction of the Fixed Link across the Fehmarn Belt is expected to be finalized), though at least until the finalization of the Fixed Link (as was the original intention with the procurement). According to the contract notice (no 2014/S 076-131973) the framework agreement should cover a period of 8 years until the operation of the Fixed Link, which at that time was expected to be around 2021. However, the construction of the Fixed Link has been delayed, and Femern A/S currently expects the Fixed Link to be finalized in 2029. Consequently, Femern A/S prolonged the existing framework agreement. Femern A/S' intention to prolong the framework agreement was announced pursuant to notice no 2022/S 067-178300. It is noted that the existing framework agreement was prolonged after the expiry of stand still as stated in notice no 2022/S 067-178300.

The prolongation of the framework agreement without a new procurement procedure falls under the Danish Public Procurement Act sections 181 and 183, which implements Directive 2014/24/EU art. 72(1)(b) and (c).

The construction of the Fixed Link requires approvals from the authorities in both Denmark and Germany. The Danish approval was achieved in 2015. However, in regard to the German plan approval the administrative procedure in Germany has been subject to massive delays, i.a. due to a number of complaints and legal proceedings. As a result hereof, the actual processing time in Germany substantially exceeded the reasonable expectations of Femern A/S initially at the time of tendering the framework agreement. Final approval in Germany was obtained in November 2020 in conclusion of the final oral proceedings at the Federal Administrative Court in Leipzig. As a direct result of this delay the overall timeschedule for the finalization of the Fixed Link has been disturbed and delayed. Consequently, Femern A/S’ demand of the Environmental Advisor, is still relevant and will continue being relevant until the finalization of the Fixed Link (expected 2029). The extraordinary long processing time in Germany and the resulting delay of the project was not possible for Femern A/S to foresee at the time of initiating the procurement procedure despite a diligent and thorough preparation of the procurement process for the framework agreement. A replacement of the Environmental Advisor in relation to work with German monitoring and supervision is in reality not possible, due to strict rules on approvals in Germany. The contemplated prolongation of the existing framework agreement is found necessary in order to finalize the initially contemplated work under the existing framework agreement. Consortium FEMO is therefore generally to deliver the same services as initially intended and hence no modification to the overall nature of the contract is made as a result hereof. The total value of the framework agreement is estimated to DKK 525,000,000 (including the prolongation). It is noted that part of the amount, that exceeds the initial estimated value (DKK 300,000,000, cf. contract notice), represents indexation and is therefore not in fact an actual modification of the framework agreement’s value. The prolongation will therefore not result in a price increase higher than 50% of the value of the existing framework agreement. The conditions for applying the Danish Public Procurement Act section 181 and 183, are therefore met.

VII.2.2)Reasons for modification
Need for modification brought about by circumstances which a diligent contracting authority/entity could not foresee (Art. 43(1)(c) of Directive 2014/23/EU, Art. 72(1)(c) of Directive 2014/24/EU, Art. 89(1)(c) of Directive 2014/25/EU)
Description of the circumstances which rendered the modification necessary and explanation of the unforeseen nature of these circumstances:

The prolongation is due to massive delays in the administrative procedure in Germany in regards to the German plan approval. The prolongation of the framework agreement between Femern A/S and Consortium FEMO without a new procurement procedure falls under the Danish Public Procurement Act sections 181 and 183, cf. further above section VII.2.1). Sections 181 and 183 of the Danish Public Procurement Act, implements Directive 2014/24/EU art. 72(1)(b) and (c).

VII.2.3)Increase in price
Updated total contract value before the modifications (taking into account possible earlier contract modifications and price adaptions and, in the case of Directive 2014/23/EU, average inflation in the Member State concerned)
Value excluding VAT: 350 000 000.00 DKK
Total contract value after the modifications
Value excluding VAT: 525 000 000.00 DKK