According to the draft of the conclusions of the Finance Ministry's supervision proceedings over the ferry tender, it may be necessary to declare the public procurement tender invalid because the Ministry of Economic Affairs and Communications has violated the Public Procurement Act throughout the tendering procedure by conducting the tender by a negotiated tendering procedure without prior publication of a tender notice without having proper legal grounds for it and circumstances have been revealed which, considering their combined effect, do not allow to go on with the tendering procedure.
This however is just the draft of the conclusions of the supervision proceedings and the final conclusions by the ministry may be different.
«Before making the decision on declaring the tendering procedure invalid the Ministry of Finance will [give] the Ministry of Economic Affairs and Communications an opportunity to presents its own opinion and arguments. A similar opportunity to present their opinion will be given to third parties Vainamere Liinid OU and TS Laevad OU, authorized representative of the joint tenderers TS Laevad OU and OU TS Shipping, who have made offers in the tendering procedure without prior publication of a tender notice and may therefore be affected by the declaring of the tendering procedure invalid,» its stands in the draft conclusions.
The Ministry of Economic Affairs and Communications said it ruled not to qualify the tender offer made by Vainamere Liinid in the original public procurement tender for four reasons. Namely, the company did not provide a confirmation of the owner of the ferries that it will be ready to sell the ferries to the state at the end of the contract period, proof that the four vessels will be there until the end of the contract period, and information about the price for which the ferries would be sold to the state. Finally, the tenderer listed additional conditions for the ferry tender by which it refused to reveal the price of fuel, rejected the possibility of the state to terminate the contract without a fine, as well as the type of the agreement under which the ferries would be sold.
According to the Finance Ministry these four differences were not substantive differences which would have enabled the Ministry of Economic Affairs and Communications to embark on a negotiated tendering procedure without prior publication of a contract notice.
Under the Public Procurement Act, the contracting authority is entitled to organize a procurement procedure in the form of a negotiated procedure without prior publication of a contract notice if no tenders or no requests to participate in the procurement procedure were submitted during an open procedure or a restricted procedure or if all submitted tenders were substantially different from the technical specifications of the object of the public contract specified in the contract documents and the initial terms of the public procurement are not altered in essence.