Ministério das Obras Públicas, Transportes e Comunicações (Ministry for Public Works, Transport and Communications)
Administrative Rule
Decree Law no. 346/90 of 3 November which defines the regime governing the establishment, management and exploitation of the infrastructures and the provision of Complementary Telecommunications Services has subjected the awarding of licences for the provision of complementary mobile telecommunications services to the principle of accessibility conditioned to the limitations of the radio spectrum.
Under the terms of the same law the licence awarding shall be preceded by a public contest, being the regulation governing the contest approved by an Administrative rule of the member of the Government with competence in the communications area.
When developing the liberalisation process of the telecommunications market - started by Decree Law no. 88/89 of 11 September, the Basic Law for the Establishment, Management and Exploitation of Telecommunications Infrastructures and Services and the consequent access of new operators for the provision of telecommunications services, the present Administrative rule approves the Regulation for the Public Tender for the Licence Awarding for the Provision of the Complementary Mobile Telecommunications Service - Land Mobile Service operating on the 900 MHz band.
Under these terms:
The Government, through the Ministry of Public Works, Transport and Communications and under the terms and for the purposes of nr. 4, article 4 of Decree Law no. 346/90 of 3 November orders the following:
1º. The Regulation for the Public Tender for the Awarding of One Licence for the Provision of the Complementary Mobile Telecommunications Service - Land Mobile Service operating on the 900 MHz band is approved which is enclosed as an annex to the present Administrative rule and which forms part of the same.
2º. The awarding of a licence for the provision of the land mobile service is governed by what is laid down in the Tender Regulation and in the clauses of the Cahier des charges.
ANNEX
Regulation for the Public Tender for the Awarding of One Licence for the Provision of the Complementary Mobile Telecommunications Service - Land Mobile Service
Article 1
Object
The object of this public contest is the awarding of one licence for the provision of the complementary mobile telecommunications service - land mobile service (SMT), operating on the 900 MHz band.
Article 2
Applicable legislation
1. The public contest is governed by what is laid down in Decree Law nr. 346/90 of 3 November, in the present Regulation and in the cahier des charges to be drawn up by the Communications Institute of Portugal (ICP) and subject to the approval of the member of the Government who has competence in the communications area.
2. The licence awarded shall be governed by what is laid down in Decree Law nr. 346/90 of 3 November, in the present operating Regulation and in the cahier des charges in addition to any other legislation in the communications area.
3. The licensed operator is obliged to comply with the prevailing national laws as far as they are applicable as well as to those mandates or injunctions which the relevant authorities have addressed to them under the terms of the law.
4. The licensed operator also undertakes to comply with those norms that will be published in the future, even if the latter include provisions resulting from the needs or requirements of public use of the service which they provide which had not been foreseen at the time of the licence awarding.
Article 3
Opening of contest
The public contest shall be opened by an executive order issued by the member of the Government responsible for communications, to be announced by way of a notification in the 2nd Series of the Diário da República (Journal of the Republic) which shall contain:
a. An indication of the service to be licensed;
b. An indication of the body promoting the execution of the contest;
c. An indication of the frequency and channel bands to be used;
d. An indication of the number of licences to be awarded;
e. An indication of the provisions governing the licence awarding;
f. A clear definition of the deeds shaping the contest.
Article 4
Bidders
1. The existing companies or companies to be created to fulfil the requirements and conditions determined by articles 5 and 6, Decree Law nr. 346/90 of 3 November can forward their proposals.
2. The companies to be created can bid provided that they have a provisional identification card, the licence only being awarded though, should they be the contract winner, upon the presentation of a certificate as real proof that the company contract registration has been made at the relevant commercial registry.
Article 5
Preparation of candidatures
The cahier des charges shall be purchased at the ICP headquarters in Avenida José Malhoa, lote 1683, Lisbon, between 9 a.m. and 12 a.m. and 1 p.m. and 4.30 p.m. up to the last day of the term for the presentation of candidatures.
Article 6
Provisional pledge
1. As a guarantee of the assumed link with the presentation of the bids and the obligations inherent to the contest the candidates shall provide a pledge in the amount of PTE 50.000.000
2. The pledge shall be given by a deposit in cash or securities issued or guaranteed by the State, at the Caixa Geral de Depósitos and payable to ICP.
3. The deposit referred to in the preceding number may be replaced by a bank guaranty or insurance pledge with guarantees equivalent to the former payable to ICP and in any case duly documented.
4. Should the deposit be made in securities, these shall be appraised at their nominal value, unless the average quotation on the Lisbon Stock Exchange in the last three months has been below par, in which case the appraisal shall be made at 90 % of the said average.
5. The pledge may be withdrawn by the bidders immediately after the termination of the submission period of the bids, if they have not presented any bid or this have not been accepted, or even in the case of the license has not been awarded.
6. For the purposes of what is laid down in the preceding number, ICP shall foster the necessary endeavours to this effect in the following 10 days.
Article 7
Requests for clarification's
1. The candidates may at any time request the clarification of any doubts which may arise in the interpretation of any of the parts of the contest documents.
2. The requests for clarification should be presented directly to ICP in writing and receipt of delivery or by registered post with acknowledgement of receipt addressed to the Chairman of the ICP Board of Directors.
3. The clarification's shall be provided by ICP by registered post with acknowledgement of receipt sent within 10 days after the dates on which the requests referred to in the preceding number are received, all candidates having to be informed of the said clarification's.
4. The public service telecommunications operators are obliged by the present Regulation and for the purposes of this contest to provide any clarification's requested by ICP from them.
Article 8
Consultation book
1. ICP shall make available an open book containing all the integrant parts of the contest procedures, the made clarification requests as well as the answers to the latter, for free consultation by any bidder between 9 a.m. and 12 a.m. and 1 p.m. and 4.30 p.m..
2. The bidders can request photocopies of the book, these being authenticated by ICP.
Article 9
Mode and term for the presentation of candidatures
1. The candidatures to obtain the licence shall be made official by means of a request in triplicate and written in Portuguese, without erasures or text written between the lines or with stricken words and written always with the same typewriter and addressed to the member of the Government who has competence in the communications area.
2. The requests shall be sent by registered post with acknowledgement of receipt or handed over by the candidates at the ICP headquarters against a receipt, between 9 a.m. and 12 a.m. and 1 p.m. and 4.30 p.m.
3. The delivery time of the requests shall end 60 days as of the date of the publication of the advertisement of the opening of the contest in the Diário da República (Journal of the Republic).
4. For the purposes of the preceding number the reception date is considered as the registration date of the candidature or of its handed over at ICP.
Article 10
Delays
In the situations foreseen by articles 7 and 9, where the postal service has been used, the bidder shall be the only responsible for any delays which may occur and is not possible for him to present any claims should the respective documents be delivered after the expiration date of the term.
Article 11
Request Procedure
1. The candidates should present in triplicate the following documents with their respective request for candidature:
a. Declaration by the entity with powers to legally bind the company, recognised by a notary as having this capacity, which expressly states the acceptance of the conditions of the public contest and submission to the obligations resulting from the candidature deed and from the respective bids should the licence be awarded;
b. Document acting as proof that the provisional pledge has been deposited under the terms settled in article 6;
c. An authenticated photocopy of the respective statutes;
d. A document stating the structure of the share capital and giving evidence of the participation, directly or indirectly, by foreign capital;
e. Document acting as proof that the company has paid up its Social Security contributions and taxes;
f. Declaration that the company has an organised accounting under the terms of the Official Plan of Accounts;
g. Document showing the organisational structure of the company identifying the main responsible and providing a summary of their CV's;
h. Detailed bid related to the exploitation of the service through a technical plan to be developed pursuant to the structure of the cahier des charges where is included, namely the description of the technological system to be implemented and its conformity with the specifications of the Groupe Special Mobile (GSM), the development plan of the system and the consequent coverage plan, the management and operation of the system and the quality levels of the service to be offered;
i. Economic and financial plan drawn up pursuant to the structure of the cahier des charges where the following is included: market forecasts, action strategy, emphasising the range of services, price system and marketing channels, as well as the economic and financial documents which explain the implantation of the plans and the operation of the service, showing the sources of financing;
j. Any other data that the candidate deems relevant for the evaluation of his candidature.
2. For the purposes of section d) of the preceding number, the bidders shall specifically indicate who are the shareholders, individuals or corporate bodies, of the company's capital, existent or to be created, and in what amount. In addition, if some or several of the shareholders are corporate bodies the same data related to this ones as that specified should be provided.
3. The bodies referred to in nr. 2 of article 4 may forgo the delivery of the elements foreseen in sections a), e) and f) of nr. 1 and shall present:
a. A legally binding protocol among the members where is expressly stated the declaration of acceptance of the conditions of the public contest and submission to the obligations resulting from the act of candidature and from the respective bids should the licence be awarded;
b. The draft of the statutes to which content the shareholders are legally bound.
4. The companies whose act of incorporation has taken place in the 90 days prior to the date on which the request for candidature has been delivered may forgo the requirement foreseen by section f) of nr. 1.
5. The bidders with headquarters are situated outside the national territory may forgo the presentation of documents required by sections e) and f) of nr. 1.
6. All those pieces that are part of the contest documents shall be presented in Portuguese, however, the technical plans can be presented in English.
7. All elements presented by the candidates and which are part of the request for candidature shall not be returned, remaining in ICP' s possession.
Article 12
Distribution of the contest pieces
1. The request for candidature shall be presented in a sealed envelope together with the elements referred to in nrs. 1 to 3 of the preceding article.
2. The documents which are part of the request for candidature shall be presented in three volumes identified and separated pursuant to the structure required by the cahier des charges, divided by the candidate identification, the technical plan and the economic and financial plan.
Article 13
Public act of the contest
1. The public act of the contest for the opening of the candidature requests shall be held at ICP at 10 a.m. of the 3rd working day after the date referred to in nr. 3 of article 9.
2. Only those individuals who have been duly authorised to represent a candidate, up to a maximum of three per candidate, may participate in the public act of the contest.
3. The public act of the contest shall be undertaken by a committee consisting of three members appointed by decree of the member of the Government who has competence in the communications area, which shall:
a. Confirm the reception of candidature requests as well as of the volumes which contain the instructing data;
b. Proceed with the opening of the envelope containing the request for candidature as well as the volumes which contain the data corresponding to the identification of the candidate, the technical plan and the economic and financial plan;
c. Initial the documents referred to in the preceding section and fix a term for the consultation of the same by the candidates;
d. Verify the capacity of those taking part in the act whenever necessary;
e. Evaluate the candidatures and prepare the ranking bidders list under the terms of nr. 1 of article 17.
4. ICP shall proceed with the technical analysis of the candidatures as well as of any other aspects requested by the committee.
Article 14
Rejection of candidatures
The candidatures shall be rejected at any stage of the contest procedure should any of the following situations occur:
1. Non-compliance with what is laid down by articles 9, 11 and 16;
2. Non-compliance with the requirements and conditions of the contest or non-conformity with the organisation required by the cahier des charges with regard to the data that instructs the request for candidature.
Article 15
Evaluation of candidatures
1. The evaluation of candidatures shall be based, priority and successively, following this preference criteria:
a. Absence or small interest of the direct or indirect participation's of public service telecommunications operators in the bidder's share capital, the latter operators being these understood under the terms of nr. 2, article 8 of Law nr. 88/89 of 11 September;
b. The best offered conditions, namely the range and quality of services and the coverage plan;
c. Best technical plan quality;
d. Best factors of innovation and development;
e. Best technical qualifications;
f. Best quality of the economic and financial plan.
2. The company awarded the licence cant change the structure and ownership of the share capital for a period of five years, unless the member of the Government who has competence in the communications area should authorise this but preceded by a favourable opinion of ICP.
Article 16
Provision of clarification's by the bidders
1. The bidders, through delegates qualified for this purpose, undertake themselves to provide the committee responsible for the evaluation of the bids with any clarification's requested for their full evaluation.
2. Should the bidders not provide the clarification's requested in the preceding number they shall be excluded from the contest with the exception of those cases duly justified and accepted by the committee.
Article 17
Final decision
1. The committee shall prepare a ranking bidders list, duly justified, and also propose, within 45 days of the date of the public act of the contest, the awarding of the licence to the bidder which has the best rating, being possible to extend the aforementioned deadline under exceptional circumstances at the proposal of the Committee by decree of the member of the Government who has competence in the communications area.
2. It is incumbent upon the member of the Government who has competence in the communications area to issue the homologation of the proposal for the licence awarding that shall be submitted to him by the committee chairman.
3. ICP shall inform all candidates of the decision regarding the licence awarding by registered post with acknowledgement of receipt.
4. The right of no-homologation is reserved should it be verified that the bid does not meet the specific requirements for public use of the service object of the contest.
Article 18
Definitive pledge
The entity that is awarded the licence shall be obliged to proceed, within 10 days of the date of the reception the respective communication referred to in nr. 3 of the preceding article, with the reinforcement of the pledge to the amount of PTE 250 000 000 to remain in force for a period of five years after which will be released annually and progressively up to a limit of one fifth of its value, as annual compliance with the coverage plan included in the licence is met.
Article 19
Issuing of the licence
1. The licence shall be issued by ICP after the fulfilment of what is laid down in the preceding article under the terms and with the text defined by Decree Law nr. 346/90 of 3 November.
2. The obligations arising from the terms of the contest and from the winning bid shall, for all intent and purposes, constitute part of the licence.
3. The licence awarding shall not confer upon the licensed operator any rights other than those resulting from the precise terms included in the licence certificate, it is not possible to invoke any other facts resulting from the awarding, by any way, of new services or licences or future change from supervening circumstances.
Article 20
Term of the Licence
The term of the licence shall be of 15 years.
