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Germany-Munich: Public transport services by railways
Section I: Contracting authority
Main address: https://beg.bahnland-bayern.de
Main address: www.rmv.de
Main address: https://vm.baden-wuerttemberg.de
Section II: Object
Invitation to tender E-Network Mainfranken
The operating services comprise a total of approx. 4,77 million train-km per year on the Würzburg Hbf — Nürnberg Hbf, Würzburg Hbf — Bamberg, Würzburg Hbf — Schlüchtern/Fulda, Würzburg Hbf — Market wide, Würzburg Hbf — Lauda (- Osterburken), Gemünden — Aschaffenburg.
The transport services to be provided include the operation of regional traffic in the E-network of Mainfranken on the Würzburg Hbf — Nürnberg Hbf, Würzburg Hbf — Bamberg, Würzburg Hbf — Schlüchtern/Fulda, Würzburg Hbf — Market wide, Würzburg Hbf — Lauda (- Osterburken), Gemünden — Aschaffenburg.
The services shall be provided from the beginning of the 2022 calendar year. The contract ends at the earliest at the end of the 2027 timetable year and at the latest by the end of the 2028 calendar year.
The traffic contract to be concluded is set out as a gross contract, i.e. the contracting entities bear the risk of the development of the ticket revenue. The transport implementation contract will include detailed rules on the quality of the transport services to be provided.
For the provision of transport services, the use of second-hand vehicles with a construction year from 2003 or from new vehicles is authorised on the part of Hessen in Hesse, the use of second-hand cars with a year of construction from 2008 or from new vehicles.
If the contract is not terminated by the Contracting Authorities for at least 18 months before its expiry, it shall be automatically extended by one additional year. In such a case, the duration of the contract shall be 9.12.2028. Any further renewal of the contract will be excluded.
Section III: Legal, economic, financial and technical information
At the time of starting the service, the future contractor must be certified as a railway undertaking in accordance with Section 6 of the General Railways Act (Allgemeines Eisenbahngesetz — AEG), or provide evidence that this approval is not required in accordance with § 6f. The future contractor must also hold a safety certificate under Section 7a of the AEG.
Tenderers must therefore submit with their tenders a licence valid at the time of submission of the tender as railway undertakings in the Federal Republic of Germany in accordance with § 6 AEG or proof that this approval is not required under § 6f AEG and a safety certificate valid at the time of submission of the tender in accordance with Section 7a (1) or (4) of the AEG.
Alternatively, the tenderer may present in the tender how to obtain authorisation as a railway undertaking including the requirement to obtain the safety certificate until the start of the operation.
In the event that only one Member/not all members of a consortium will be responsible for the carrying out of the scheduled transport services, the documents referred to above shall be submitted only to the Member (s) responsible for carrying out the scheduled transport services.
In addition, tenderers must provide a professional extract from the trade register in accordance with the legislation of the country where the tenderer is established (date not before 12.3.2019). A copy of the Current (AD) document, from the Joint Register Portal of the Länder, at: www.handelsregister.de it is sufficient to download.
Economic and financial capacity must be considered to be ensured if, in the opinion of the contracting entities, it is likely that the tenderer will have the necessary economic and financial capacity to cover its current financial obligations, including those from the local authority’s behalf and the costs and initial losses that may arise.
If a tenderer invokes a third party’s economic and financial capacity to prove his economic and financial capacity, the tenderer must provide evidence of the economic and financial capacity of this third party by submitting the documents as described above. The tender must also include a letter of commitment from the third party to the effect that the tenderer will actually have at its disposal the resources of the third party required for the contract. The undertaking may not be withdrawn unilaterally by the third party for the duration of the contract. This must be reflected in the text of the agreement or letter of commitment. Any obligation to provide the tenderer with other financial resources, in addition to the funds allocated in the context of the allocation of the relevant loan, will not have to be received by the third party.
In addition, for the benefit of the contracting entities, the third party has to accept, together with the tenderer, joint and several liability for the performance of the contract, to the extent that he provides the tenderer with the resources required for the contract. The size of the funds provided shall be indicated in the declaration. In view of the minimum economic and financial capacity requirements referred to in point 2, it is sufficient for the positive equity capital available to the tenderer, together with the third party’s own resources, to meet the requirements set out in point 2 of the same requirements. This declaration must also be included in the tender.
In order to assess the economic and financial capacity of a consortium, it is sufficient that the requirements set out in the sum of the members of the consortium are fulfilled.
The self-declarations referred to in this section must not be dated before 12.3.2019.
To this extent, tenderers must comply with the following requirements:
1) a minimum annual turnover of EUR 44 million in the last financial year closed before the submission of the tender, and (2) a positive equity at a time, i.e. having regard to at least EUR 1 million for the tenderer’s financial year closed before the submission of the tender, taking account of any silent reserves available in the tenderer’s assets, at the end of the last financial year of the tenderer completed before the date of submission of the tender.
To the extent that a loss has been recorded in that financial year, the required capital shall be increased by the amount of the loss for the last financial year, unless the tenderer proves that the loss is compensated by the investor or that profits have been made in the current financial year.
Tenderers must provide the following supporting documents in order to prove that they meet the requirements laid down:
1) a self-declaration of the turnover of the tenderer during the last financial year for which the accounts have been closed prior to submission of the tender;
2) the financial statements (balance sheet, profit and loss account, annex, financial report, explanatory part, if any) of the tenderer’s last financial year for which the accounts have been closed, if and to the extent that the publication in the country in which the tenderer is established is legally required;
3) a self-declaration of the nature and amount of the unrealised gains available in the tenderer’s assets at the time of the end of the last financial year (if the accounting capital does not reach the minimum amount of capital required by point 2 of the above requirements);
4) a self-declaration by the tenderer that a loss previously declared by the tenderer’s partner in the last financial year for which the accounts have been closed has been offset or made up of profits in the current financial year.
If no financial statements are drawn up for the last financial year for which the tenderer has been closed or there is no tenderer submitting the annual accounts in whole or in part and who wishes to rely on the statement of reasons that its publication is not legally required, the tenderer shall provide a self-declaration document.
In this case, in addition to the documents referred to in points 1, 3 and 4 above and in place of the document referred to in point 2 above, the tenderer must submit a general statement of revenue in respect of the last financial year for which the accounts have been closed, together with the company profit and balance sheet and a balance sheet in respect of the following items:
(a) present and assess all assets and liabilities pursuant to Sections 238 to 289a of the Commercial Code;
(b) capital and reserves at book values;
c) Description and explanation of the items and information presented in the balance sheet pursuant to Sections 284 to 288 of the Commercial Code.
If, at the time of submission of the tender, the financial statements relating to the last financial year for which the tender was submitted have not been drawn up and established, or if the balance sheet and the general statement of revenue, if any, are not yet in place, the tenderer shall provide this in a self-declaration document.
In addition to the documents referred to in points 1, 3 and 4 above, the tenderer must then submit the following documents instead of the document referred to in point 2 above:
(a) the financial statements (see paragraph 2 above) or the general statement of revenue and the balance sheet, where these are shown above, for the most recent financial year for which accounts have been closed;
(b) a GVA indicating the revenue and operating expenses and the provisional annual result for the last financial year for which the accounts have been closed (where applicable, before accounting entries); and (c) a self-declaration of the initial equity (for book value) at the end of the last financial year, taking into account the provisional annual result and the deposits, profit distributions and other withdrawals carried out in the last financial year for which the accounts have been closed.
Complete for all cases:
Where the documents required under the above requirements give a true and fair view of the assets and liabilities, financial position and profit or loss of the tenderer for the last financial year for which the accounts have been closed, the additional information required to describe the actual situation shall be provided by means of a self-declaration.
The technical and professional capacity must be considered to have been achieved if the tenderer has the experience required to perform the relevant tasks in the SPNA. Proof that the tenderer has the technical and/or staff resources already available to him/her at this stage in order to properly perform the contract must not be proven. Personnel and equipment may be obtained during the period of execution, which must be sufficiently long.
Tenderers must provide evidence of their technical and professional capacity by providing references, in the form of a list of the essential services provided in the past 3 years, indicating the value of the service delivered in the past years, including the km/value, the duration of the service, and the contracting authority, public or private. Service contracts in the SPNA must not have been delivered in all of these years. The contracting authorities will also take into account references relating to service contracts in the SPNV, which are more than 3 years, but not more than 6 years. The references may be either by a declaration from the contracting authority concerned or by means of self-declaration.
At least one reference must be provided in the SPNV for a service contract during the last 6 years (not obligatory in all years).
If a tenderer invokes a third party’s technical and professional capacity to prove his technical and professional capacity, the tenderer must provide evidence of the technical and professional capacity of the third party by submitting the documents described above with the tender.
The tender shall also include a letter of commitment from the third party to the effect that the tenderer may actually have the experience of the third party. The undertaking may not be withdrawn unilaterally by the third party for the duration of the contract. This must be reflected in the text of the act of undertaking. Secondly, the staff of the third party, who possesses the experience with the references, must be used in the performance of the service. This must also be shown in the letter of commitment to be submitted.
When assessing the technical and professional capacity of a group of tenderers it is sufficient that the requirements set out in the sum of the members of the consortium are met. The technical and professional capacity of a member of the consortium shall be sufficient to accept the consortium’s suitability only if that member (s) are to be responsible for running the scheduled transport services according to the internal allocation of the consortium. This must be indicated in the tender, if supporting documents are available only for one member/individual member of the group.
§ 6 General Railways Act (AEG)
Section IV: Procedure
Section VI: Complementary information
Re I.3) Communication:
The contracting authority/entity shall make available on the internet free of charge, in full, in full and on demand, free of charge, complete and direct access to the Internet, without prior registration, on the website of the procurement platform, as specified in point I.3, without any need for prior registration, and additional information on his procurement documents as referred to in point I.1). The requirement for the registration of documents by the registration of persons thus gives rise to an obligation to act independently, to inform them about any changes to the tender documents or to provide additional information. Automatic notification of changes shall only be made to registered tenderers.
Questions related to procurement documents can only be requested from railway undertakings (RU) authorised to provide the requested service according to the legislation of their Member State in which they are established (see § 9 (3) VgV iVm). Article 19(1) of Directive 2014/24/EU of 26.02.2014). The RU therefore has access to the contract on the allocation platform at the following address: https://subreport-elvis.de/anmeldung.html register with a unique company name, address and active e-mail address. Subsequently, the contracting authority shall automatically inform the registered RU of any changes to the tender documentation and the publication of applicant information on the internal communication system of the procurement platform, which will include a notification function by e-mail.
If and to the extent that the alert leads to a change of operator, a transfer of staff pursuant to Section 131 (3) GWB is applied by the incumbent operator to the new operator. More details can be found in the tender documents.
Internet address: https://www.regierung.oberbayern.bayern.de/behoerde/mittelinstanz/vergabekammer/
Reference is made to the admissibility requirements for a review of the public procurement chamber pursuant to § § 160 GWB, in particular the provisions of Section 160 (3) GWB, which read as follows:
“(3) The application is inadmissible:
1) the applicant has identified the alleged breach of the procurement rules before the application for review has been submitted and has not complained to the contracting authority within 10 calendar days; the expiry of the time limit set out in Section 134 (2) shall remain unaffected:
(2) infringements of procurement rules arising from the notice are not criticised by the contracting authority at the latest by the deadline specified in the notice of invitation to tender;
(3) non-compliance with procurement rules that are identifiable only in the procurement documents is not criticised by the contracting authority at the latest by the deadline for submitting tenders or submitting tenders;
4) more than 15 calendar days from the date of receipt of the contracting authority’s notification that it is not intended to remedy a complaint. Sentence 1 does not apply to a request to establish the contract’s ineffectiveness in accordance with Section 135 (1) (2). § 134 (1) sentence 2 remains unaffected.”