According to the decision made by the Finnish Competition and Consumer Authority (FCCA) on 17 May 2019, the Municipality of Vihti violated the Act on Public Procurement and Concession Contracts by not publishing a contract notice required by law concerning the renewal of lighting fixtures along the Nummelanharju outdoor route.
The Municipality of Vihti published on 28 May 2019 a contract notice concerning the procurement of maintenance services for outdoor lighting in public areas. According to the contract notice, the procurement covered tasks related to the maintenance of outdoor lighting fixtures, as well as service rounds, maintenance and repair work, and an on-call service. Specifications were provided in the service description attached to the invitation to tender stating that new installations, large-scale renovations and group replacements were excluded from the contract. The winner of the competitive tendering process, and the chosen contracting partner, was Destia Ltd. Under the awarded contract, the Municipality of Vihti also ordered from Destia Ltd the renewal of lighting fixtures along the Nummelanharju outdoor route. The value of the project was estimated at €160,000–170,000. According to the municipality, this constituted a small, separately invoiced project included in the lighting maintenance contract.
In the view of the FCCA, a lighting project encompassing the replacement and cabling of approximately one hundred lighting units cannot be considered an individual, small-scale maintenance or repair project that could be included in the awarded lighting maintenance contract. If all tenderers would have originally known that the contracting entity would, in addition to individual maintenance and repair works, procure also more large-scale renovations from the supplier, this knowledge might have affected the end result of the procurement procedure by, for example, increasing the willingness of operators in the specific field to participate in the procurement process. According to the FCCA, the Municipality of Vihti had altered the original contract substantially without legal justification and had, therefore, made in actual fact an illegal direct award of contract.
The FCCA also found that the invitation to tender was unclear as regards the object of the procurement. The FCCA estimated that the service description did not specify in adequate detail the different kinds of work that may be invoiced separately, and, therefore, the tenderers may have interpreted the wording of the documents of the invitation to tender differently. The ambiguity of the invitation to tender has compromised the enforcement of the principle of transparency, as well as the equal and non-discriminatory treatment of tenderers.
The FCCA points out that the object of the procurement agreement and the terms and conditions of the procurement procedure should be expressed clearly, precisely and unambiguously in the contract notice or in the documents of the invitation to tender.
Further information: Senior Specialist Elisa Aalto, telephone +358 (0)29 505 3683, e-mail email@example.com.
Under section 139 of the Act on Public Procurement and Concession Contracts (1397/2016), the Finnish Competition and Consumer Authority is tasked with supervising compliance with the legislation on public procurements. For a detected violation, the FCCA can issue an admonition to the contracting entity or provide the contracting entity with other form of administrative guidance referred to in section 53c of the Administrative Procedure Act (434/2003). With regard to illegal direct awards, the FCCA can, by virtue of section 140 of the Act on Public Procurement and Concession Contracts, prohibit the implementation of the procurement decision. In the case of direct awards exceeding the EU threshold values, the FCCA can also submit a proposal to the Market Court to impose sanctions such as a penalty fine, shortening of the contract period or quashing of the procurement decision. The same provisions apply also to service procurements and concession contracts referred to in schedule E to the Act on Public Procurement and Concession Contracts, which exceed the national threshold values and have been concluded as direct awards without justification provided by law.