Ministério do Equipamento, do Planeamento e da Administração do Território (Ministry of Equipment, Planning and Territorial Administration)
Administrative Rule
(This is not an official translation of the law)
Under the terms of Decree-Law no. 381-A/97, of 30 December, which governs the licensing of public telecommunications network operators and public telecommunications providers, the allocation of frequencies for the operation of networks or frequencies for the provision of services requires the prior grant of a licence.
In preparing the telecommunications sector for full liberalisation as from 1 January 2000 and in recognition of the importance of fixed radio access for the provision of new telecommunications services, the Portuguese Communications Institute (ICP) launched a public consultation process to gauge interest in fixed radio access.
Taking into consideration both public interest and the interest shown by the various entities that responded to the public consultation, the ICP resolved to put out to tender the allocation of frequencies for fixed radio access.
Use of these frequencies is solely allowed as an extension of networks involving other infrastructures, namely fixed infrastructures. The legal figure of the fixed radio access operator is thus non-existent.
Under these terms:
Through the Minister of Equipment, Planning and Territorial Administration, under the terms and for the purposes of the provisions of paragraph 2 of article 13 of Decree-Law no. 381-A/97, of 30 December, the Government hereby decrees that:
1. The Tender Regulations governing the Grant of Domestic Licences for the Use of Fixed Radio Access Frequencies in the following frequency bands are approved:
a) Frequency band 3600-3800 MHz;
b) Frequency band 24.5-26.5 GHz;
c) Frequency band 27.5-29.5 GHz.
2. The Tender Regulations referred to in the previous paragraph are published as an annex to this Order in Council and are an integral part thereof.
3. The grant of licences for the use of fixed radio access frequencies referred to in the previous paragraph is governed by the provisions of Decree-Law no. 381-A/97, of 30 December, by the Tender Regulations and by the clauses of the respective tender specifications.
4. This Order in Council shall come into force on the date it is published.
ANNEX
Tender Regulations governing the Grant of Domestic Licences for the Use of Fixed Radio Access Frequencies.
Article 1
Purpose
1. The purpose of the tender is to grant the following domestic licences for the use of fixed radio access frequencies:
a) Three licences for the use of frequencies in the 3600-3800 MHz band;
b) Six licences for the use of frequencies in the 24.5-26.5 GHz band;
c) Two licences for the use of frequencies in the 27.5-29.5 GHz band.
2. The fixed radio access frequencies put out to tender are to be used as an extension or integral part of a telecommunications network which includes other signal carrying infrastructures providing services to the end user.
3. The frequencies referred to in sub-paragraph c) of paragraph 1 are intended primarily for applications involving television broadcasting.
4. Licences granted under this tender shall remain valid only as long as the frequencies remain allocated under the terms of paragraph 2, the Portuguese Communications Institute responsible for revoking licences should this condition be breached.
5. The frequencies referred to in paragraph 1 shall not be used as a support medium for the transmission network and shall be made available from 1 January 2000.
6. The allocation of frequencies under this tender shall be reviewed two years after the issue of licences so as to comply with article 25 of Decree-Law no. 381-A/97, of 30 December.
Article 2
Applicable Legislation
1. The tender is governed by the provisions of Decree-Law no. 381-A/97, of 30 December, by these Regulations and by the tender specifications to be drawn up by the ICP and approved by the member of the Government responsible for communications.
2. The licences granted under this tender are governed by the provisions of Decree-Law no. 381-A/97, of 30 December, by these Regulations and by the tender specifications, and by other communications sector legislation.
3. Persons granted a licence undertake to comply with applicable national legislation in force and with all orders or injunctions which, under the terms of the law, are addressed to them by the competent authorities.
4. Persons granted a licence further undertake to comply with all statutes published in the future regardless of whether such statutes prescribe provisions resulting from public use needs or requirements not foreseen when the licence was granted.
Article 3
Invitation to tender
The tender shall be launched by order of the member of the Government responsible for communications, said order to be published in the 2nd series of the Official Government Gazette and containing information on:
a) the purpose and duration of the tender;
b) the entity responsible for the tender;
c) the frequency bands to be used;
d) the provisions governing the grant of licences;
e) the terms of reference of the tender.
Article 4
Bidders
1. Operators of public telecommunications networks or companies that provide public telecommunications services - registered as such with the ICP, under the terms of Decree-Law no. 381-A/97, of 30 December, and authorised to use a public telecommunications network to provide the services they operate - may bid for the licenses put out to tender.
2. For the purposes of the previous paragraph, bids shall be accepted from companies which, prior to the date on which the tender is launched, have submitted to the ICP an application for a public telecommunications network operator's licence or have officially declared the start of their activity under the terms of article 10 of Decree-Law no. 381-A/97, of 30 December.
3. Companies may bid for licences in more than one frequency band, although only a single licence involving use of a single frequency range may be granted to each bidder in the same frequency band.
4. Licences in the 24.5-26.5 GHz and 27.5-29.5 GHz bands may not be granted cumulatively to the same entity.
5. For the purposes of paragraphs 3 and 4, two bidding companies, one of which holds a direct or indirect share of 10% or more in the share capital of the other, shall be considered the same entity.
Article 5
Preparation of bids
Tender specifications are available from the head office of the ICP, at Avenida de José Malhoa, 12, in Lisbon, between 9 am and 4 pm, until the end of the period for the submission of bids.
Article 6
Security
1. In order to guarantee performance of the obligations resulting from the submission of a tender, bidders shall lodge a security in the amount of PTE 10,000,000, regardless of the number of licences for which they are bidding.
2. The security shall be lodged by means of a deposit to the credit of the ICP in cash or in bonds issued or guaranteed by the State at the Caixa Geral de Depósitos.
3. The deposit referred to in the previous paragraph may be substituted by a banker's guarantee or fidelity insurance providing equivalent and duly documented guarantees to the credit of the ICP.
4. When the deposit is made in bonds, these shall be valued at their respective nominal value unless over the previous three months the average share index of the Lisbon Stock Exchange is lower than normal, in which case their value shall be 90% of this average.
5. The security may be withdrawn by bidders once the time period for the submission of bids has ended, provided that no bid has been submitted or a submitted bid has not been accepted.
6. For the purposes of the previous paragraph, the ICP shall ensure that the security may be withdrawn within 10 working days.
Article 7
Requests for information
1. During the period set aside for the submission of bids and up to 10 days prior to the end of the submission period, bidders may request clarification of any doubts they might have regarding the interpretation of any of the terms of reference of the tender.
2. Requests for information must be submitted in writing to the head office of the ICP, with a receipt given as proof of delivery, or sent by registered post with recorded delivery to the chairman of the board of directors of ICP.
3. The information requested shall be sent by the ICP by registered post with recorded delivery within five days of the date on which the request is received and shall be immediately included by the ICP in the tender reference book referred to in article 8.
4. Public network operators and public telecommunications service providers are bound by these Regulations for the purposes of this tender to provide the ICP with all the information it requests within the time period established by the latter so that it may comply with the provisions of the previous paragraph.
Article 8
Tender reference book
1. The ICP shall maintain a book containing all documentation in respect of the tender process, including requests for information that have been received and their respective answers, which may be freely consulted between 9 am and 4 pm by any bidder.
2. Bidders may request photocopies, authenticated by the ICP, of the reference book.
3. The reference book shall be closed and archived at the ICP on the day on which bids are opened.
Article 9
Method and deadline for the submission of bids
1. Bids for licences must be made in writing in triplicate to the member of the Government responsible for communications and shall contain the identification of the bidder, the frequency band for which it is competing, reference to the tender launch notice, and the date and signature of the bidder.
2. For the purposes of paragraph 4 of article 4 and whenever the bidder simultaneously bids for licences in the 24.5-26.5 GHz and 27.5-29.5 GHz bands, the bid application shall contain, by order of preference, the frequency band the bidder wishes to be allocated.
3. The application shall be drawn up in Portuguese, without erasures, amendments, insertions or words crossed out, with the same font used throughout.
4. Bid applications shall be handed in at the head office of the ICP between 9 am and 4 pm, with a receipt received as proof of delivery.
5. The time period for the submission of bids shall end 22 working days following the date on which notice of the launch of the tender is published in the Official Government Gazette.
Article 10
Delays
Should the postal service be used to submit a request for information as referred to in article 7, the bidder shall be the sole party responsible for any delays that are incurred and may not submit any complaint should the request be delivered after the applicable deadline.
Article 11
Bid documentation
1. Bidders shall submit the following documents in triplicate together with their respective bid application:
a) A document proving that the candidate fully complies with the requirements laid down in article 4 of these Tender Regulations;
b) A declaration from the entity with binding powers over the bidder, recognised as such by a notary public, expressly stating that the entity accepts the terms and conditions of the tender and the obligations arising out of the act of bidding and the respective proposals in the event the bidder is granted a licence;
c) Certification of registration issued by the competent company registrar;
d) Authenticated photocopy of the respective articles of association;
e) A document providing proof that the security has been lodged under the terms of article 6;
f) A document showing the composition of direct and indirect shareholder's equity to two levels;
g) A document proving that the entity's social security and tax obligations are fully paid up;
h) Proof of an organised accounting system under the terms of the Official Chart of Accounts;
i) A document outlining the organisational structure of the bidding entity with an identification of those in the most senior positions and a summary of their curricula vitae;
j) A detailed proposal concerning the installation and operation of the system to be developed in accordance with the technical plan to be drawn up in compliance with the tender specifications, this proposal containing the description and architecture of the network, system planning, the coverage plan, the range of services and the quality of the service;
k) An economic and financial plan drawn up in accordance with the structure of the tender specifications, containing market projections, operating strategy, the applications for which the frequencies are intended to be used, the pricing system, and the economic and financial documents in respect of the implementation of the project and the operation of the system, detailing sources of funding;
l) Any other items of information that the bidder considers relevant for appraising its bid.
2. For the purposes of sub-paragraph a) of the previous paragraph, companies that are solely authorised to provide public telecommunications services and are registered as such with the ICP, under the terms of Decree-Law nº 381-A/97, of 30 December, shall submit a document giving proof that they are authorised to use a public telecommunications network.
3. For the purposes of sub-paragraph f) of paragraph 1, bidders shall indicate the names of the bidder's shareholders together with their respective share.
4. Should any shareholder be a legal person, the same indication shall also be given in respect of its shareholders.
All documents forming part of the bid shall be drawn up in Portuguese or, if they are not, shall be accompanied by a duly legalised translation which the bidder declares shall take precedence for all purposes over the respective originals.
5. All documentation submitted by bidders as part of their application shall not be returned and shall remain in the possession of the ICP.
Article 12
Distribution of bid documentation
1. The bid application shall be submitted in a single, sealed, duly identified envelope.
2. Documents accompanying the bid application shall be submitted in three sealed volumes, identified and separated in accordance with the structure required in the tender specifications, containing the identification of the bidder, the technical plan, and the economic and financial plan, each with documents in triplicate.
Article 13
Opening of applications
1. Applications shall be opened at the ICP at 10 am on the second working day following the date referred to in paragraph 5 of article 9, this information to be published by the ICP in the press.
2. The application opening ceremony may only be attended by representatives of the bidders, up to a maximum of three persons per bidder, all of whom shall be duly accredited to represent them at the ceremony.
3. The opening of applications shall be carried out by a commission comprising three members, hereinafter referred to as the commission, appointed by order of the member of the Government responsible for communications, the commission being responsible for:
a) Confirming receipt of the envelopes containing the applications and the volumes containing the accompanying bid documentation;
b) Opening the envelopes containing the applications and the volumes containing the documents and elements corresponding to the identification of the bidder, the technical plan and the economic and financial plan;
c) Initialling the originals of the documents referred to in the previous sub-paragraph, signing and stamping the remaining documents, and setting a time period for consultation of said documents by the bidders;
d) Verifying the capacity of the participants at the ceremony as and when necessary;
e) Accepting and deciding on any objections that are presented during the ceremony by the representatives of the bidders, suspending the ceremony whenever necessary.
4. Appeals against the decisions referred to in sub-paragraph e) of the previous paragraph shall be lodged with the member of the Government responsible for communications and shall have only a devolutive effect.
Article 14
Rejection of bids
Bids shall be rejected at any stage of the tender process should any of the following be found to have occurred:
a) Non-compliance with articles 9, 11 and 16;
b) Non-compliance with any of the requirements, terms and conditions of the tender or non-conformity, in respect of the submission of the elements forming the bid application, with the organisation required in the tender specifications.
Article 15
Appraisal of bids
1. The commission is responsible for the appraisal of bids.
2. Without prejudice to the previous article, the appraisal of bids shall be based on the following selection criteria, listed in order of importance:
a) Bids which provide the best conditions in terms of effective competition, universality and diversity of services;
b) Quality of service, range of services and coverage;
c) Quality of the technical plan;
d) Innovation and development factors;
e) Quality of the economic and financial plan;
f) Technical qualifications.
3. For the 3600-3800 MHz frequency band, the first selection criteria shall be the possession by the bidder of a public telecommunications network operator's licence.
4. For the 27.5-29.5 GHz frequency band, the first selection criteria shall be the absence or least amount of direct or indirect shares in the bidder's share capital held by the concessionaire of the public telecommunications service as prescribed by sub-paragraph b) of article 1 of the Public Telecommunications Service Law in Principle, approved by Decree-Law nº 40/95, of 15 February.
5. The ICP shall carry out the technical analysis of bids, together with any other activities requested of it by the commission.
Article 16
Provision of information by bidders
1. Bidders shall provide the commission through their qualified delegates with all the information requested to fully appraise bids.
2. Non-compliance with the previous paragraph shall result in exclusion from the tender except in duly justified cases accepted by the commission.
Article 17
Final decision
1. For each frequency band, the commission shall draw up a list classifying the bids, stating the full reason therefore, and shall propose within 22 working days of the date on which the bid opening ceremony is held the grant of licences to those bidders which, satisfying the terms and conditions of the tender and the selection criteria, obtain the best classification.
This deadline may be extended in exceptional cases, by proposal of the commission, by order of the member of the Government responsible for communications.
2. The member of the Government responsible for communications is responsible for approving proposals for the grant of licences, said proposals to be submitted to the member of the Government by the chairman of the commission.
3. When the decision regarding the grant of the licence is in favour of a company that has submitted to the ICP a request for licensing under the terms of paragraph 2 of article 4, the grant of the licence put out to tender is subject to the condition that the company's request for a public telecommunications network operator's licence is approved.
4. The decision regarding the grant of the licence shall be communicated by the ICP to all bidders in a letter sent by registered post with recorded delivery.
5. The Government reserves the right not to approve the grant of a licence should the bid fail to satisfy the public use requirements inherent in the use of the frequencies put out to tender.
Article 18
Definitive security
1. Within 10 days of receipt of the communication referred to in paragraph 4 of the previous article, the entities to whom licences are granted shall make an additional security payment in the amount of PTE 65,000,000 for each licence granted.
2. The security referred to in the previous paragraph shall be valid for a period of five years, and may be progressively withdrawn on an annual basis up to a limit of one fifth of its value provided the obligations contained in the licence are complied with.
Article 19
Issue of licence
1. Licences shall be issued by the ICP following compliance with the provisions of the previous article, under the terms of Decree-Law nº 381-A/97, of 30 December.
2. Should the bidder awarded the licence fail to comply with paragraph 3 of article 17 and paragraph 1 of article 18 without due reason, the member of the Government responsible for communications shall, by proposal of the ICP, return the classification list to the commission requesting that a new proposal for the grant of a licence be submitted to the member of the Government within five working days, under the terms of paragraph 1 of article 17.
3. Approval of the new bid shall result in the annulment of the licence granted previously.
Article 20
Obligations of the licensed entity
1. The obligations arising out of the terms of reference of the tender and the winning bid, together with the preferential conditions determining the grant of licences, are for all purposes an integral part of the licences.
2. The grant of the licence does not confer on the licensed entity any rights other than those resulting from the exact terms contained in the licence, and no facts resulting from the grant, in any form, of new services or licences or a change in circumstances may be invoked.
Article 21
Term of licence
Without prejudice to paragraph 4 of article 1, the licence shall be valid for a period of 15 years.
Article 22
Counting of deadlines
The provisions of article 72 of the Code of Administrative Procedure shall apply to the counting of the deadlines and time periods referred to in these Regulations.
The Minister of Equipment, Planning and Territorial Administration, João Cardona Gomes Cravinho, 24 June 1999.
