Kapsch 2 – Continuation of a Never-ending Case
For over four years TIC has exerted comprehensive efforts to obtain information about contractual relations between the Ministry of Transport or RMD and the company Kapsch.
In the first phase the Ministry refused to provide information about monitoring of performance of contracts concluded with Kapsch. It provided only the total amount of costs expended from public funds (CZK 22,094,023,587.04 including VAT).
The Ministry of Transport provided two basic contracts (Contract on supply of a road toll system, Contract on provision of services related to operation of the road toll system) only after the Minister made a decision on TIC’s appeal on 23 May, 2011. It is important to note that TIC had requested these contracts almost two years earlier (18 June, 2009).
Both of the contracts have eight pages of text, which do not provide any substantial information (e.g. price) aside from declarations by the contractual parties. All of the substantial information is contained in the annexes, which are specified as an integral part of the contracts. However the Ministry did not provide these annexes.
There are also ten supplements to the two contracts, each concluded on the basis of closed negotiations. This procedure is justified in the supplements by the statement: “Expert opinions show that from a technical viewpoint, only the Contractor is capable of supplying the requested performance to the Contracting Entity.” The Act on Public Contracts No. 137/2006 Coll. permits a similar procedure in one of its provisions [S.23(4)(a)] but the Ministry did not provide technical opinions or other annexes specifying the price and scope of the supplies along with the supplements, so it is impossible to verify the Ministry’s justification for the selected procedure.
The entire situation may be illustrated on the first supplement, which was concluded on 19 December, 2007 on the basis of closed negotiations announced on 9 October, 2007. This specific supplement was initiated because of the need for toll gates for oversized loads, for new sections of roads and motorways up to 2017 and for tolling of vehicles from 3.5 to 12 tons in size. At least in the case of oversized loads and new sections of roads and motorways, the Ministry could have known about the need for these investments and should have included them in the price of the original tender procedure and not have had to address them two years later through a supplement based on closed negotiations, where the price for the two items was almost CZK 2.5 billion.
In conclusion, it is necessary to state that the Contract on supply of a road toll system sent by the Ministry was concluded on 14 September, 2005. However the supplements refer to a contract on supply dated 29 March, 2006 and to articles not contained in the provided contract. It is therefore evident that there is yet another Contract on supply of a road toll system, which TIC does not have at its disposal even after two years of effort. Evidently the Ministry provides only the minimal scope of information, which is in violation of the act on free access to information (No. 106/1999 Coll.), and from which it may be deduced that the Ministry is attempting to conceal irregular relations with Kapsch and possible violation of the act on public contracts.