Services - 449435-2019

24/09/2019    S184    Services - Voluntary ex ante transparency notice - Contract award without prior publication 

Denmark-Copenhagen: Infrastructure works consultancy services

2019/S 184-449435

Voluntary ex ante transparency notice

Services

Legal Basis:

Directive 2014/25/EU

Section I: Contracting authority/entity

I.1)Name and addresses
Official name: Banedanmark
National registration number: 18632276
Postal address: Carsten Niebuhrs Gade 43
Town: København V
NUTS code: DK011
Postal code: 1577
Country: Denmark
Contact person: Rasmus Shermer
E-mail: rash@bane.dk
Telephone: +45 41768140

Internet address(es):

Main address: www.bane.dk

I.6)Main activity
Railway services

Section II: Object

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

Technical Consultancy and Support for the National Signaling Renewal Programme in Denmark (ERTMS Deployment)

II.1.2)Main CPV code
71311300
II.1.3)Type of contract
Services
II.1.4)Short description:

In January 2009 the Danish Parliament decided to fund a 18 000 000 000 DKK national replacement programme of renewing all Danish railway signaling by 2023 (ERTMS). As part of this, in 2009, Banedanmark entered a main consultancy agreement concerning technical consultancy and support (multiconsultancy services) with a joint venture (see Section V.2.3)). This initial contract was subject to a call for competition. In the contract notice from 2009 it was stated that the estimated value of the contract was between 500 000 000 and 1 000 000 000 DKK and that the stated amount was a rough estimate. During 2018-2019, the programme has been subject to re-planning, and the final roll-out has been postponed to 2030 due to an unforeseen complexity in the installation of the IT based signaling programme. This notice regards the intended change of provisions to the contract following the re-planning of the signaling programme.

II.1.6)Information about lots
This contract is divided into lots: no
II.1.7)Total value of the procurement (excluding VAT) (Agree to publish? yes)
Value excluding VAT: 2 900 000 000.00 DKK
II.2)Description
II.2.1)Title:
II.2.2)Additional CPV code(s)
71311200
II.2.3)Place of performance
NUTS code: DK0
II.2.4)Description of the procurement:

Reference is made to Section II.1.4) above.

As mentioned, in 2009, Banedanmark entered a main consultancy agreement concerning technical consultancy and support (multiconsultancy services) with a joint venture (see Section V.2.3)). This is referred to as the joint venture contract and covers technical multiconsultancy during the completion of the signaling replacement programme (from design to end phase).

In order to ensure that the joint venture contract is fully updated and complies with the new planning set up of the signaling programme, Banedanmark intends to enter into a contract amendment with the Joint Venture, which this notice regards to. The contract amendment will not be concluded/signed before the expiry of a period of 10 days from the date of publication of this notice.

The intended amendment includes the settlement of several contractual issues that have arisen during the term of the contract since its initiation in 2009 and as a result of the re-planning of the national signaling programme. The amendment cover:

(i) clarification as regards the duration of the contract (15.1): in the contract notice from 2009 it was stated that the contract covered multi-disciplinary consultancy services from August/September 2009 to the closing of the signalling programme around 2023. The closing of the signalling programme is now estimated to be in 2030. Consequently, it is clarified in the amendment that the duration of the contract has been updated to cover; ‘the end of the programme, latest by 31.12.2030’. In relation to this, the joint venture is compensated with 50 % of the documented additional costs for the project insurance with a cap of 800 000 DKK;

(ii) Banedanmark’s right to partially terminate the contract (15.2): on at least 3 months notice, Banedanmark can partially terminate tasks inherent in the contract;

(iii) the scope of the contract (17.2): In relation to point (ii), Banedanmark further has the right to award these tasks to another contractor if Banedanmark finds these more capable;

(iv) contractor’s resources (5.3): appointment of new and an updated list of key ressources;

(v) integrated teams: strengthened management of work performed in integrated teams consisting of Banedanmark and joint venture resources. The Joint Venture is compensated with additional 2 FTE’s for this purpose.

Banedanmark finds that the intended amendment does not change the overall purpose and scope of the joint venture contract. The overall scope of the contract is — also if the amendment is entered into — to provide multidisciplinary technical consultancy and service for the completion of the programme (covering tender phase, design, early deployment, roll-out on both the city line S-banen, regional and national lines and programme closing). Further, certain circumstances (the abovementioned) have changed in a way which was not and could not have been foreseen and Banedanmark finds that it is necessary to continue to purchase consultancy services from the joint venture, which since 2009 has built up and obtained unique competences and knowledge of the Danish Signalling Programme. Thus, Banedanmark considers that the intended amendment — with reference to Article 89, Paragraph 1, litra b) and c) of the Utilities Directive (2014/25) — does not constitue a substantial change and is consequently permitted under the public procurement rules. Reference is made to the detailed explanation hereof in Annex D2, Section 3, below.

Banedanmark estimates that the total value of the contract, covering the period from 2009 to 2030, will be approximately 2 900 000 000 DKK.

II.2.5)Award criteria
II.2.11)Information about options
Options: no
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:

2014-DK-TM-0300-W “Retrofitment of vehicles with ERTMS baseline 3 – level 2”

2014-DK-TM-0183-W “ERTMS Trackside deployment along the section Copenhagen H – Køge Nord – Ringsted in East Denmark”

II.2.14)Additional information

Section IV: Procedure

IV.1)Description
IV.1.1)Type of procedure
Award of a contract without prior publication of a call for competition in the Official Journal of the European Union in the cases listed below
  • The procurement falls outside the scope of application of the directive
Explanation:

Overall, Banedanmark considers that the intended changes to the ‘Joint Venture Contract’, following the replanning of the Danish signaling programme, do not constitute a substantial change to the contract. Thus, it is Banedanmark’s assessment that the intended amendment — with reference to Article 89, paragraph 1, litra b) (additional supplies) and c) (unforeseen events) of the Utilities Directive (2014/25) — is permitted under the public procurement rules.

The national roll-out of the new signaling programme (ERTMS) in Denmark has included the development of an IT based system. This has covered IT development according to new European standards of a system of which Denmark is a national first-mover. The complexity of the programme has, however, been greater than could have been foreseen, as other similar European ERTMS programmes also show. This has resulted in the re-planning of the national roll-out in Denmark postponing the last roll-out of the ERTMS system from 2023 to 2030.

The joint venture has provided and still is providing critical technical expertise, which is critical for the success of the programme and which would be very difficult for a new contractor to similarly build up. Hence, it would be a vast setback for the signalling programme and extremely resource-demanding and expensive to re-tender the contract. In addition to this, Banedanmark needs the unique competences and knowledge that the joint venture has built up specifically of the Danish signaling programme since 2009 to finish the programme in 2030.

In addition to the abovementioned, the total estimated value of the contract is expected to be approximately 2 900 000 000 DKK.

IV.1.3)Information about framework agreement
IV.1.8)Information about the Government Procurement Agreement (GPA)
The procurement is covered by the Government Procurement Agreement: yes
IV.2)Administrative information
IV.2.1)Previous publication concerning this procedure
Notice number in the OJ S: 2009/S 185-266158

Section V: Award of contract/concession

Title:

Technical Consultancy and Support for the National Signaling Renewal Programme in Denmark (ERTMS Deployment)

V.2)Award of contract/concession
V.2.1)Date of contract award decision:
07/09/2009
V.2.2)Information about tenders
The contract has been awarded to a group of economic operators: yes
V.2.3)Name and address of the contractor/concessionaire
Official name: Rambøll Danmark A/S, Atkins Danmark A/S, Emch+Berger AG Bern, Parsons Group International Ltd and Rambøll — Atkins – EMCH + Berger — Parsons Joint Venture
National registration number: 35128417
Postal address: Hannemanns Allé 53 (Rambøll)
Town: København S
NUTS code: DK
Postal code: 2300
Country: Denmark
E-mail: TAN@ramboll.dk
Telephone: +45 51611000

Internet address: https://dk.ramboll.com/

The contractor/concessionaire will be an SME: no
V.2.3)Name and address of the contractor/concessionaire
Official name: Rambøll Danmark A/S, Atkins Danmark A/S, Emch+Berger AG Bern, Parsons Group International Ltd and Rambøll — Atkins — EMCH + Berger — Parsons Joint Venture
National registration number: 35128417
Town: København S
NUTS code: DK
Postal code: 2300
Country: Denmark
The contractor/concessionaire will be an SME: no
V.2.4)Information on value of the contract/lot/concession (excluding VAT) (Agree to publish? yes)
Initial estimated total value of the contract/lot/concession: 1 000 000 000.00 DKK
Total value of the contract/lot/concession: 2 900 000 000.00 DKK
V.2.5)Information about subcontracting

Section VI: Complementary information

VI.3)Additional information:

Regarding Section II.1.7) — the stated amount (2 900 000 000 DKK) is the estimated value of the contract covering the period from 2009 to 2030. It is underlined that Banedanmark by stating this estimated value is not obliged to purchase consultancy services from the Joint Venture equivalent to the stated amount.

Regarding Section V.2.1) — the stated date (7.9.2009) is the date on which the joint venture contract was entered into.

The intended amendment will not be concluded/signed before the expiry of a period of 10 days from the date of publication of this notice.

Regarding Section V.2.4) — the first stated amount (500 000 000-1 000 000 000 DKK) is the estimated value of the contract which was contained in the contract notice from 2009. The second stated amount (2 900 000 000 DKK) is the estimated value of the contract covering the period from 2009 to 2030.

Regarding Section V.2.3) please see the following additional URL's:

http://atkins.dk/?lang=da and https://www.emchberger.ch/de/emchberger-ag-bern and https://www.parsons.com/

VI.4)Procedures for review
VI.4.1)Review body
Official name: Klagenævnet for Udbud
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.4.2)Body responsible for mediation procedures
VI.4.3)Review procedure
Precise information on deadline(s) for review procedures:

Banedanmark shall follow the procedure in Section 4 of the Act on the Board of Appeal (Consolidated Act No 593 of 2.6.2016 on the Public Procurement Board of Appeal, available at: www.retsinformation.dk). Thus, the intended contract amendment will not be concluded before the expiry of 10 calendar days with effect from the day following the date of publication of this notice, cf. Section 4 (1) (2) of the Act on the Board of Appeal.

According to Section 7 (3) of the Act on the Board of Appeal, a complaint that the contracting entity has concluded a contract without prior publication of a contract notice in the Official Journal of the European Union, in cases where a contracting entity has followed the procedure laid down in Section 4, must have been submitted to the Board of Appeal within 30 calendar days from the day following the date on which the contracting entity published a contract notice in the Official Journal of the European Union stating that the contracting entity has concluded a contract, provided that the notice contains the justification of the procuring entity’s decision to award the contract without prior publication of a contract notice in the Official Journal of the European Union.

At the latest at the time of submitting a complaint to the Board of Appeal, the complainant shall inform the contracting entity in writing that the complaint is submitted to the Board of Appeal and whether the complaint has been lodged during the 10 calendar day period laid down in Section 4 (1) (2). In addition, in cases where the complaint has not been lodged in the said period, the complainant shall also indicate whether or not suspensory effect is requested, see Section 12 (1).

Contact details for the Board of Appeal are set out in Section VI.4.1 above.

The Board of Appeal’s own guidance on complaints is available on the website listed in Section VI.4.1 above.

VI.4.4)Service from which information about the review procedure may be obtained
Official name: Konkurrence- og Forbrugerstyrelsen
Postal address: Carl Jacobsens Vej 35
Town: Valby
Postal code: 2500
Country: Denmark
E-mail: kfst@kfst.dk
Telephone: +45 41715000

Internet address: http://www.kfst.dk

VI.5)Date of dispatch of this notice:
19/09/2019