The Office Decides on the Proposals of Westinghouse and EDF Against the Nuclear Tender Procedure In the First Instance

The Office for the Protection of Competition (hereinafter referred to as "the Office") has decided in the first instance on the proposals of the companies Électricité de France and Westinghouse Electric Company LLC against the procedure of the contracting authority Elektrárna Dukovany II in the tender for the construction of a new nuclear power plant. The proceedings on the proposals of both companies were mostly terminated, while other parts of the proposals were rejected. The decisions are not final and the parties to the proceedings may lodge an appeal with the Chairman of the Office.

The Westinghouse company directed a part of its objections against the procedure of the contracting authority outside the framework of the Public Procurement Act on the basis of the so-called security exception (pursuant to Article 29 (a) of the Public Procurement Act). In this part, the Office terminated the administrative proceedings because the company should have filed its objections to the use of the exemption no later than 15 days after it became aware of the use of this procedure, which was in March 2022. However, the objections were not received by the contracting authority until 1 August 2024.

Both applicants also argued that the contracting authority had acted illegally in failing to comply with the basic principles of public procurement, in particular in relation to the selection of the preferred supplier (Korea Hydro & Nuclear Power Co., LTD) and, for example, the substantial extension of the subject of performance of the public contract in question, the inability of the preferred supplier to perform the contract, etc. In this part, the Office also terminated the administrative proceedings, because no legal objections can be raised against the specific procedure of the contracting authority in awarding the public contract outside the procurement procedure using the exception under Article 29(a) of the Public Procurement Act (i.e. against its individual partial actions in the given procurement procedure).

Besides that, both applicants claimed an alleged infringement of the Foreign Subsidies Regulation and the applicant Électricité de France claimed a breach of the 3E principles as well. The Office rejected the proposals in these parts because they were not directed against a procedure which the contracting authority is required to follow under the Public Procurement Act.

The prohibition to conclude a contract for the tender in question remains in effect until the decision in the case comes into force.

Press Unit of the Office
24/166 – S0678/2024, S0679/2024