E-7/19 Tak Malbik ehf. v. the Icelandic Road and Coastal Administration and Þróttur ehf

EFTA-case

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Deadlines: Motivation ministry:          22 October 2019
Written observations:                          9 December 2019 (ultimate deadline)

Keywords : public procurement; WTO; works contract; services contract

Subject :

-           Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC;

-           Regulation No 178/2018 on the Advertisement of Procurement on the Tender Site and the Reference Amounts for Public Procurement and Procurement Under the WTO Agreement;

Facts of the case:

Tak – Malbik ehf (Complainant) lodged a complaint concerning the call for tenders by the Icelandic Road and Coastal Administration (IRCA) marked “Material Processing in the Western Area 2019, Fossamelar”. The Complainant requested that the Committee annul the decision of IRCA to award the contract to Þróttur ehf.. In addition, the Complainant requested a comment on the liability of IRCA for compensation and the basis for damages from the Committee. Finally, the Complainant sought to recover costs incurred due to the legal proceedings. The Committee requested information from IRCA as to whether the appealed call for tenders had been advertised in the EEA and, if it was not, on what grounds. IRCA stated that the invitation to tender had not been advertised in the EEA as it involved the award of a works contract that fell below the threshold amount for the obligation to tender under Regulation No 178/2018 on the Advertisement of Procurement on the Tender Site, the Reference Amounts for Public Procurement and Procurement Under the WTO Agreement. The Committee rejected IRCA’s claim to lift the automatic suspension of the procurement process established by the complaint in the present case. Therefore, the suspension of the procurement process is pending until the Complainant’s claims have been resolved.

Request for an advisory opinion:

Is a contract to be pursued following an invitation to tender, in which tenderers undertake to process and stockpile certain raw materials provided by the contracting authority, and in accordance with the contracting authority’s requirements, considered a works contract within the meaning of Directive 2014/24/EU, cf. in particular paragraphs 6 and 7 of Article 2, or a service contract within the meaning of the Directive, cf. in particular Article 2(9)?

Cited (recent) case-law: /

Policy area: BZK; EZK