New Trains — Supply and Maintenance of Electric Trainsets

Kort beskrivelse

DSB seeks to acquire electric trainsets and a variety of interconnected deliverables. The purpose of the acquisition is to enable DSB to carry out its passenger transport operations. Furthermore, DSB intends to acquire full service maintenance including management and performance of maintenance and all related technical support services and delivery of spare parts for the electric trainsets and other supplier services.

Thus, the procurement consists of a framework agreement for acquisition of electric trainsets and other deliverables (Supply Agreement, “SA”) and maintenance services as a Full Service Agreement (FSA) and other Supplier Services for the electric trainsets (Maintenance Agreement, “MA”). The 2 agreements are interconnected and the tender procedure for the agreements is the same. Award will take place for both agreements to the same tenderer in accordance with the common award criteria, see section II.2.5.

Yderligere oplysninger

1) Re the European Single Procurement Document (ESPD):

The applicant shall complete and submit an ESPD which serves as preliminary evidence of fulfilment of the conditions for participation, incl. absence of the grounds for exclusion. DSB reserves the right, at any time during the tender procedure, to request an applicant/tenderer to provide documentary proof, see section 151 of the Danish Public Procurement Act (Act no 1564 of 15 December 2015), cf. executive order no. 1624 of 15 December 2015 section 11, if required to ensure the proper execution of the procedure. Before awarding the agreements, the tenderer to whom DSB intends to award the agreements must provide documentation concerning the information in the ESPD, see section 153 of the Danish Public Procurement Act. DSB has prepared the ESPD for the applicants to fill out, see the tender material.

2) The amount in sections II.1.5) and II.2.6) is a rough estimate (incl. all options) stated solely for the purpose of giving interested parties an impression of the scope of the contract.

3) The duration in section II.2.7) is the expected duration of the SA and the MA, however not incl. an exercise of the options for extension by 10 years of the MA.

4) An economic operator may only submit one application to participate. "Economic operator" shall be defined as a single economic operator or a group of economic operators (a consortium). In addition, two or more economic operators who are part of the same legal group may not submit more than one application to participate, unless the economic operators can demonstrate that their participation in the tender process is and continuously will be autonomous and independent. "The same legal group" shall be defined as entities covered by directive 2013/34/EU art. 22(1). The same applies if an economic operator participates in more than one prequalification application, e.g. alone and in a consortium, alone and as a supporting entity or in a consortium and as a supporting entity. DSB will, where appropriate, request additional information from such applicants to verify that their participation in the tender process is and continuously will be autonomous and independent. If this cannot be verified, DSB may not take either of the applications into consideration. The same principle applies if the situation arises during the tender procedure.

5) Questions concerning the application for participation may be submitted at the “QnA” section in EU Supply where answers will also be made available.

6) During the negotiation process (at the earliest after receiving INDO2) DSB reserves the right to shortlist, i.e. to reduce the number of tenderers, to two tenderers, based on the initial evaluation of the INDO2 (or later INDOs) in accordance with the award criteria, see the Tender Conditions clause 7.2.1.

7) The signing of the agreements is subject to political approval, incl. final approval of the funding of the project from the Finance Committee of the Danish Parliament.

8) DSB has conducted a preliminary market consultations in order to prepare the procurement. A report summarizing DSB's findings is available at https://www.dsb.dk/om-dsb/virksomheden/rapporter-og-regnskab/fremtidens-tog/

9) Reference is made to the Tender Conditions clause 10 regarding changes to the composition of the tenderer.

10) Please see the Tender Conditions clause 9 re requirement categorization of the tender material. It is emphasized that all requirements that are not Mandatory Requirements may in principle be subject to negotiation and may be changed or withdrawn according to DSB’s decision. Thus, DSB encourages all economic operators who can comply with the Mandatory Requirements (and fulfil the minimum requirements for participation, see sections III.1.2) and III.1.3)) to apply for prequalification, even if the economic operator cannot comply with all Key Requirements. Please also see the Tender Conditions clause 7 re expected topics for negotiations.

Krav om deponering og sikkerhedsstillelse

The supplier is expected to provide a parent company guarantee as well as an advance payment guarantee and a performance and warranty guarantee; however, DSB's requirements regarding these guarantees may be subject to negotiations during the tender process. Thus, the requirements for the guarantees may be changed or withdrawn entirely according to DSB’s decision.

Objektive kriterier for udvælgelse af det begrænsede antal ansøgere

If more than the required number of applicants fulfill the minimum requirements, see sections III.1.2) and III.1.3), the selection of the applicants that will be invited to submit tenders will be based on an evaluation of which applicants have documented the most relevant previous deliveries and services in comparison to the agreements described in sections II.1.4) and II.2.4) above, in terms of the comparability and quantity of the previous deliveries and services. It will be regarded positively in the assessment if each reference fulfills as many minimum requirements as possible, see section III.1.3), and if a train solution has been taken over and put in commercial operation by an external customer. Please note that any ambiguities and/or unclearness in the information submitted in the ESPD in response to section III.1.3) may be regarded negatively in the evaluation when selecting the limited number of candidates.

Kort beskrivelse

Through tender notice no. 2018/S 120-274572 dated June 22, 2018, published on June 26, 2018, DSB (Danish State Railways) tendered out agreements for the procurement of 'New Trains – Supply and Maintenance of Electronic Trainsets', at an estimated value of 50 billion Danish Kroner. The tender was carried out in accordance with the Utilities Directive (2014/25/EU).
DSB announces with this notice that DSB intends to enter into an agreement to amend the contract, cf. further details on this in sections 2.1 and 5.1.
During the project execution the parties have disagreed about the responsibility for delay of Milestones in the Project Time Schedule and MPM Time Schedule and about certain issues regarding the Reliability regime of the agreements. Furthermore the parties have disagreed regarding a number of raised claims, Variations and Issues.
The parties have agreed to settle these matters without changing the economic balance of the agreements in favour of Alstom Transport Danmark A/S ("the supplier") in a manner which was not provided for in the agreements and while maintaining the overall balance of the respective rights and obligations of the parties.
The parties have therefore agreed to the following amendments:
1. Changes to the Reliability Regime in terms of a) exclusion of Significant Defects on four specific STM-DK components (however, capped), b) adjustment of parts of the stepwise improvements during Reliability Demonstration Phase, c) change of requirements for Trial Operation Test for the first five trainsets so more than five trainsets (up to seven trainsets) can be used for the Trial Operation Test in Denmark, the number of Defects allowed are reset for the Trial Operation Test in Denmark and modifications will be allowed during the Trial Operation Test outside Denmark under certain conditions, d) increase of the Reliability Target for Significant Defects and decrease of the Reliability Target for Major Defects and e) introduction of an additonal Reliability Performance Penalty.
2. Change concerning time of delivery. The date of the Preliminary Take Over (PTO) of the first trainset has been postponed by 19 months and an additional penalty for delay has been introduced.
3. Monetary compensation converted into trainsets. DSB will receive a number of trainsets at no cost and will have the possibility to receive an additional number of trainsets at no cost, if DSB submits an Additional Purchase Order for additional trainsets within a certain time frame. A new bonus regime has also been implemented in form of a “win back” mechanism, whereby the supplier can “win back” payment for some of the additional trainsets.
4. Settlement of a number of other disagreements regarding raised claims, Variations and Issues.

Beskrivelse af udbuddet

Through tender notice no. 2018/S 120-274572 dated June 22, 2018, published on June 26, 2018, DSB (Danish State Railways) tendered out agreements for the procurement of 'New Trains – Supply and Maintenance of Electronic Trainsets', at an estimated value of 50 billion Danish Kroner. The tender was carried out in accordance with the Utilities Directive (2014/25/EU).
DSB announces with this notice that DSB intends to enter into an agreement to amend the contract, cf. further details on this in sections 2.1 and 5.1.
During the project execution the parties have disagreed about the responsibility for delay of Milestones in the Project Time Schedule and MPM Time Schedule and about certain issues regarding the Reliability regime of the agreements. Furthermore the parties have disagreed regarding a number of raised claims, Variations and Issues.
The parties have agreed to settle these matters without changing the economic balance of the agreements in favour of the supplier in a manner which was not provided for in the agreements and while maintaining the overall balance of the respective rights and obligations of the parties.
The parties have therefore agreed to the following amendments:
1. Changes to the Reliability Regime in terms of a) exclusion of Significant Defects on four specific STM-DK components (however, capped), b) adjustment of parts of the stepwise improvements during Reliability Demonstration Phase, c) change of requirements for Trial Operation Test for the first five trainsets so more than five trainsets (up to seven trainsets) can be used for the Trial Operation Test in Denmark, the number of Defects allowed are reset for the Trial Operation Test in Denmark and modifications will be allowed during the Trial Operation Test outside Denmark under certain conditions, d) increase of the Reliability Target for Significant Defects and decrease of the Reliability Target for Major Defects and e) introduction of an additonal Reliability Performance Penalty.
2. Change concerning time of delivery. The date of the Preliminary Take Over (PTO) of the first trainset has been postponed by 19 months and an additional penalty for delay has been introduced.
3. Monetary compensation converted into trainsets. DSB will receive a number of trainsets at no cost and will have the possibility to receive an additional number of trainsets at no cost, if DSB submits an Additional Purchase Order for additional trainsets within a certain time frame. A new bonus regime has also been implemented in form of a “win back” mechanism, whereby the supplier can “win back” payment for some of the additional trainsets.
4. Settlement of a number of other disagreements regarding raised claims, Variations and Issues.

Tildeling af en kontrakt uden forudgående offentliggørelse af en indkaldelse af bud i Den Europæiske Unions Tidende (begrundelse)

As noted in section 5.1 the parties have during the project execution disagreed about the responsibility for delay of Milestones in the Project Time Schedule and MPM Time Schedule and about certain issues regarding the Reliability regime of the agreements. Furthermore the parties have disagreed regarding a number of raised claims, Variations and Issues. The parties have reached a consolidated settlement on these matters with due respect to not changing the economic balance of the agreements in favour of the supplier in a manner which was not provided for in the agreements and while maintaining the overall balance of the respective rights and obligations of the parties.
The agreements have been subject to tender and DSB does not consider it necessary to conduct a new tender procedure in connection with the changes to the agreements, as the changes are not substantial, cf. Article 89(1)(e) of the Utilities Directive, as defined in Article 89(4) of the Utilities Directive and further elaborated in point (1)-(4) below. (1) The changes do not introduce conditions that, if they had been part of the original tender procedure, would have allowed other applicants than those originally selected access nor would the changes have attracted additional participants in the tender procedure, in this respect it is emphasised that in addition to the four prequalified candidates another three candidates applied but were not prequalified, and the changes would not have changed this and there were no other relevant applicants in the market that would have been able to fulfil the minimum requirements for suitability, (2) the changes would not have resulted in DSB accepting a different offer than the one originally accepted, as the changes would not have led to the submission of significantly different offers, if the changes had been part of DSB’s tender material initially, and because the award of the contract to a large extent was determined by a large difference between the received offers, (3) the changes do not alter the economic balance of the contract in the supplier’s favour in a way that the original contract or framework agreement did not allow for, in this respect it is emphasised that the overall balance of the respective rights and obligations of the parties are maintained as the compensation received by DSB balances the relaxation of the requirements made in favour of the supplier, and (4) the changes do not significantly expand the scope of the contract or framework agreement.
In addition to the changes not being substantial, the supplier has previously communicated in early warnings to DSB that the supplier is facing difficulties in their supply chain due to the global shortage of electronic components and raw materials caused by the Russian invasion of Ukraine and the aftermath from the Covid-19 health situation. The supplier has also communicated in early warnings to DSB that they are very challenged with regards to availability of test facilities, as the test facilities in Europe are limited and overbooked due to the many train acquisition projects in the EU. To the extent that the changes should be deemed to be due to these factors, and in particular the Russian invasion of Ukraine, the need for the change could also have arisen due to circumstances that DSB could not have foreseen at the time of entering into the contract. In this case, the amendment may be entered into without a new tender procedure in accordance with Article 89(1)(c) of the Utilities Directive.

Præcise oplysninger om fristerne for gennemgangsprocedurer

Complaints that DSB has concluded a contract without prior publication of a notice must be submitted to the Danish Complaints Board for Public Procurement within 30 calendar days from the day after the day on which DSB has published a notice in the Official Journal of the European Union that DSB has concluded the contract, cf. Section 7(3) of the Danish Act on the Complaints Board for Public Procurement (Lov om Klagenævnet for Udbud).
No later than at the same time as a complaint is submitted to the Danish Complaints Board for Public Procurement, the complainant must inform DSB in writing that a complaint is submitted to the Danish Complaints Board for Public Procurement and whether the complaint has been submitted within the period of 10 calendar days (calculated from the day after the day on which this notice is published in the Official Journal of the European Union) as set out in section 4(1)(2) of the Danish Act on the Complaints Board for Public Procurement.