We assisted RB Rail to set qualification requirements for tenderers in the procurement of large track sleepers, as well as helping to defend them in a public procurement dispute before the Procurement Monitoring Bureau.
Legal issues related to transport infrastructure
Our client is organising a tender procedure and negotiations entitled “Consolidated supplies of railway sleepers (including rail fastenings and sleepers) for the construction of the Rail Baltica railway line”.
Rail Baltica is a unique project that requires innovative solutions for organising public procurement.
The sleepers to be installed on the Rail Baltica line require a large amount of material and must meet high safety requirements. Therefore, it was necessary for our client to set proportionate but strict qualification requirements for tenderers. The requirements covered not only previous experience in supplying sleepers but also their design and manufacture, including the fitting of rail fastenings and subsoil during the production process. Sorainen helped to develop the qualification requirements.
One of the potential tenderers tried to challenge the qualification requirements to the Procurement Monitoring Bureau, on the basis that they are inconsistent with the Public Procurement Law, restrictive of competition and create unequal treatment of suppliers.
Innovative approach to dispute settlement
With the support of Sorainen, the client managed to explain the difference between the Rail Baltica railway line and existing railway lines in Latvia. Forming our position required a different and innovative approach.
In the course of the dispute, attention was drawn to the need to ensure that Rail Baltica complies with the European Union’s technical specifications for interoperability, as defined in Regulation of the Commission of the European Union No. 1299/2014 and Directive (EU) 2016/797 of the European Parliament and of the Council (EU), which justifies the need for experience not only in the supply of sleepers, but also in their design and production.
The Procurement Monitoring Bureau upheld the contested qualification requirements.
Legal assistance was provided by leading specialist, counsel Raivo Raudzeps.