We would like to thank you for your effective assistance in this matter and for bringing it up with us in time, which contributed to preventing a possible infringement of the EC rules in the UK.
So ends a letter sent to Friends of the Earth’s Rights and Justice Centre, who represented anti-incineration campaigners from Hull and East Riding (including HOTI and East Yorkshire Eye) in a dispute over funding for a proposed Saltend incinerator. The letter was issued by the Head of the European Commission Directorate General Internal Market and Services Public Procurement Policy Unit based in Brussels, following an investigation of a complaint made against Hull City Council and East Riding of Yorkshire County Council.
The complaint, made in March 2009, focussed on the award of a waste disposal services contract to the Spanish-owned Waste Recycling Group (WRG). Campaigners alleged that Hull and East Riding Councils were about to commit an infringement of the EC public procurement rules, as they intended to award a waste disposal services contract to WRG, without allowing other firms to submit a bid.
In 1999 the Councils signed a 25-year waste disposal services contract with WRG. The Councils subsequently announced their intention to extend this contract by a further 5 years, at an the estimated cost of about £72 million. This would have entailed modifying some of the existing contract’s conditions, without carrying out a prior call to competition and a tendering process in accordance with European Commission (EC) rules.
The planned contract amendments included an increase in the capacity of WRG’s proposed incinerator as well as changes to the payment mechanism. Campaigners successfully argued that this would constitute “a material amendment of the essential conditions” and therefore could not be considered a lawful extension to the existing contract.
According to the European Commission:
In such a case, the £72 million worth contract would constitute an autonomous and new public contract, which should therefore have been tendered out on the basis of an open, transparent tendering process in accordance with the EC rules.
As a result of the complaint:
…the UK authorities were invited not to proceed with the extension of the existing contract or with any other relevant act, before the Commission services’ conclusion regarding [their investigation into] compliance with the Community law of the issues under review.
During a telephone conference in October 2009 between the EC and UK officials, the Commission expressed their doubts and concerns that the proposed contract amendments would constitute an unlawful contract modification, as interpreted by the European Court of Justice, and would therefore constitute an infringement of public procurement rules.
Following that discussion, Hull City Council and East Riding of Yorkshire County Council gave the Commission an unequivocal commitment “that the Councils were no longer contemplating the possibility of extending or amending the existing contract with the WRG” and that “…the Councils now intend to continue with the contract in question as it stands, without introducing an extension or modification to its terms”.
And to think, they might have gotten away with it if not for those pesky anti-incineration campaigners working with the help of Friends of the Earth’s Rights and Justice Centre!
You can help support Hull campaigners in the next round of their legal battle to stop an incinerator from being built in Saltend by investing in HOTI bonds – see Get ‘em while they’re HOTI
