Administrative Rule no. 447-A/97, of 7 of July
Published in D.R. number 154 (Series I-B) of 7 July 1997
Ministério do Equipamento, do Planeamento e Administração do Território (Ministry for Equipment, Planning and Territorial Administration)
Decree-Law no.346/90 of 3 November, which defines the regime for the establishment, management and operation of the infrastructures and the provision of complementary telecommunications services, conditioned the attribution of licences for the provision of complementary mobile telecommunications services to the principle of accessibility subject to the limitations of the radioelectric spectrum.
Under the terms of that same law, the attribution of licenses shall be preceded by public tender, the respective regulations being approved by government order issued by the member of the government responsible for communications.
Pursuing the course initiated in the early 90's the time has now come to create the conditions to provide the access of more operators to the market of mobile telecommunications services, by installing the DCS 1800 - Digital Communications System, meanwhile made available, which must be able to be used by all licensed operators or those to be licensed under equal conditions.
This is the aim behind the framework of the public tender to award a licence for the provision of the SMT service.
The Government, through the Minister for Equipment, Planning and Territorial Administration, hereby decrees the following under the terms and for the purposes of the provisions of article 4 paragraph 4 of Decree-Law no.346/90 of 3 November:
1- The Regulations for the Public Tender for Attribution of a Licence for the Provision of the Complementary Mobile Telecommunications Service - Mobile Service, to operate in 900 Mhz and 1800 Mhz frequency bands, which regulations are published in an annex hereto which is an integral part hereof.
2- The attribution of the licence for the provision of the mobile service is governed by the provisions of Decree-Law no. 346/90 of 3 November, by the Tender Regulations and by the clauses of the respective specification.
Regulations of the Public Tender for the Attribution of a Licence for the Provision of the Complementary Mobile Telecommunications Service - Mobile Service
The object of the public tender is to attribute a licence, to operate at national level, for the provision of the complementary mobile telecommunications service - mobile service (SMT), to operate in the 900 Mhz and 1800 Mhz frequency bands.
1- The public tender is governed by the provisions contained in Decree-law nº 346/90 of 3 November, by these Regulations and by the specifications to be drawn up by Instituto das Comunicações de Portugal (ICP) subject to the approval of the member of Government responsible for communications.
2- The licence attributed is governed by the provisions contained in Decree-law nº 346/90 of 3 November, by these Regulations and by the specifications, as well as by any other legislation of the communications sector.
3- The licensee must fulfil the national laws in force where applicable as well as all mandates or injunctions imposed on it by the competent authorities under the terms of the law.
4- The licensed operator undertakes also to comply with all laws to be published in the future even if such laws establish provisions arising from needs or requirements of the public use of the service that had not been foreseen when the licence was attributed.
Launching the Tender
The public tender is launched by decision of the member of Government responsible for communications, such decision to be published by means of an announcement in the 2nd Series of the Official Government Gazette containing the following:
a) Indication of the service to be licensed;
b) Indication of the body promoting the tender;
c) Indication of the frequency bands and the channels to be used;
d) Indication of the provisions governing attribution of the licence;
e) Explanation of the instruments comprising the tender.
1- Bidders may be commercial companies that are incorporated or about to be incorporated provided they comply with the requirements and conditions established in articles 5 and 6 of Decree-law nº 346/90 of 3 November.
2- Companies to be incorporated may bid provided they possess a provisional identification card although, if attributed, the licence will only be issued on presentation of a document certifying that the company's memorandum of association has been registered at the competent company registry office.
Preparation of Applications
The specifications may be procured from the head office of ICP at Av. José Malhoa, 12, in Lisbon, between 9 am and 4 pm up to the end of the time limit for delivery of applications.
1- To guarantee the undertaking assumed with presentation of the bids as well as the duties inherent to the tender, bidders must provide a guarantee in the amount of PTE 70.000.000$00.
2- The guarantee is effected by depositing the amount in cash or in securities issued or guaranteed by the State in Caixa Geral de Depósitos in favour of ICP.
3- The deposit referred to in the preceding paragraph may be substituted by a bank guarantee or insurance guarantee providing a similar assurance in favour of ICP, which in either case must be duly documented.
4- When the deposit is in the form of securities these are valued at their nominal value unless in the preceding three months the average price on the Lisbon Stock Exchange is fixed below par in which case the securities shall be valued at 90% of such average price.
5- The guarantee may be retrieved by the bidders immediately after the end of the time limit for delivery of the bids should a bid not have been submitted, not been accepted or no licence have been attributed.
6- For purposes of the provisions of the preceding number ICP must, within the 10 subsequent working days, take the necessary steps in that regard.
Requests for Clarification
1- During the time limit for presentation of the bids and up to 15 working days before such time limit expires, bidders may request clarification of any doubts concerning interpretation of the instruments of the tender process.
2- Requests for clarification must be made to the ICP head office in writing, against a receipt, or sent by registered mail with acknowledgement of receipt to the Chairman of the board of directors of ICP.
3- ICP shall provide the necessary clarifications in writing by registered letter with acknowledgement of receipt, sent up to 10 working days after the dates of receipt mentioned in the preceding paragraph; ICP shall also take immediate steps to have such clarifications recorded in the Book of Reference mentioned in article 8.
4- Under the terms of these Regulations and for purposes of this tender operators of telecommunications services for public use are obliged to provide all clarifications as requested by ICP, such clarifications to be furnished within the time limit fixed for such purpose, particularly so as to enable fulfilment of the provisions of the preceding paragraph.
Book of Reference
1- ICP must make available a Book of Reference containing all the parts that are integral to the tender process, the requests made for clarification, as well the replies thereto, such a Book to be freely available between 9 am and 4 pm for consultation by bidders.
2- Bidders may request photocopies of the Book of Reference, such photocopies to be authenticated by ICP.
3- The Book of Reference shall be closed and filed at ICP on the date of public opening of the bids.
Method and Time Limit for Presentation of Applications
1- Applications for licences must be made in writing and in triplicate, addressed to the member of Government responsible for communications; applications must contain the identification of the bidder, reference to the announcement of the launch of the tender, and be dated and signed by the bidder.
2- The bid must be written in Portuguese, with no erasures, corrections, writing between the lines or words crossed out, and always in the same typeface.
3- Applications must be handed in between 9 am and 4 pm at the ICP head office against a receipt.
4- The time limit for delivery of the bids ends 45 working days after the date of publication of the announcement of the launch of said tender in the Official Government Gazette.
If the postal service is used in the case of the situation described under article 7, the bidder is the only person responsible for any delays and may submit no claim should the delivery of the request for clarification occur after termination of the applicable expiry date.
Documents of the Bid
1- With the application bidders must submit the following documents in triplicate:
a) A declaration from the body that binds the company, which capacity must be notarially recognized, expressly containing acceptance of the conditions of the public tender, and subjection to the duties arising from the application and the respective bids, should the licence be attributed;
b) A document proving that a provisonal guarantee has been provided under the terms established in article 6;
c) A legalised photocopy of the articles of association;
d) A document showing the structure of the share capital and the direct or indirect holdings by foreign capital;
e) A document proving that the company has complied with its payments with regard to social security and rates and taxes;
f) A declaration that the accounts comply with the Official Plan of Accounts;
g) A document setting out the organizational structure of the company, identifying the persons responsible for management of the company, and their respective curricula;
h) A detailed proposal regarding operation of the service, embodied in a technical plan to be developed in accordance with the structure of the specifications, such a proposal containing a description of the technological systems to be set up and their compliance with the specifications of the Global System for Mobile Communications (GSM) and of the Digital Communications System (DCS 1800), the development plan for the systems and the inherent coverage, management and operation of the systems and the standards of quality of the service to be provided;
i) An economic and financial plan drawn up in accordance with the structure of the specifications containing market forecasts and performance strategies, emphasising the range of services, the price system and the commercialisation channels as well as economic and financial documents on implementation of the project and operation of the service, as well as the financing sources;
j) Any other data deemed relevant by the bidder for evaluation of its application.
2- For purposes of sub-paragraph d) of the preceding number bidders must specify in detail the natural or legal persons that are the holders of the share capital of the company already incorporated or to be incorporated; if any of these persons is a legal person, the above specifications also apply.
3- The bodies referred to in article 4 paragraph 2 are exempt from providing the documents mentioned in sub-paragraphs a), e) and f) of paragraph 1 above and must instead submit the following:
a) A protocol binding the incorporating persons inter se and containing an express declaration of acceptance of the conditions of the public tender and subjection to the duties arising out of the application and respective bids, should the licence be attributed;
b) The draft articles of association to which the incorporating persons are bound;
c) Provisional identification card.
4- Companies whose incorporation occurred in the 90 days preceding the date of delivery of the application are exempt from the requirement referred to in paragraph 1 sub-paragraph f).
5- Documents submitted by bidders whose head office is outside Portugal must be issued and authenticated by the competent authorities of the country of origin; should no document identical to those requested be available it can be substituted by a declaration made under oath by the bidder before a legal or administrative authority, notary or other competent authority of the country of origin.
6- All documents accompanying the application must be written in Portuguese or, if not, be accompanied by a duly legalised translation regarding which the bidder states that for all purposes, the latter shall prevail over the original.
7- All documents comprising the application submitted by bidders shall not be returned but will remain in the possession of ICP.
Presentation of the Parts of the Tender
1- The application must be submitted in a sealed, autonomous and identified envelope.
2- The documents accompanying the application must be submitted in three sealed packages, identified and separated in accordance with the structure required in the specifications, one package identifying the bidder, one containing the technical plan and the third package the economic and financial plan, each containing the documents in triplicate.
Public Act of the Tender
1- The public act of the tender to open the applications shall take place at ICP at 10 am on the 5th working day after the date mentioned in article 9 paragraph 4, set out in an announcement to be published in the press by ICP.
2- Only representatives of the bidders up to a maximum of three persons per bidder may be present at the public act of the tender, such persons being duly empowered to represent the bidders in said act.
3- The public act of the tender is conducted by a 3-member committee appointed by decision of the member of Government responsible for communications. The committee is responsible for:
a) Confirming reception of the envelope containing the application as well as the packages containing the documents and accompanying instruments;
b) Opening the envelope containing the application as well as the packages containing the documents and information pertaining to identification of the bidder, the technical plan and the economic and financial plan;
c) Initialling all the originals of the documents referred to in the preceding sub-paragraph simultaneously causing the remaining documents to be sealed and stamped, and establishing a time limit for consultation of same by bidders;
d) Whenever so required, checking the capacity of the persons intervening in the act;
e) Accepting and deciding on all claims submitted during the public act by the bidders's representatives, suspending said act whenever necessary.
4- An appeal, which does not suspend the effects of the appeal decision, may be lodged against the decisions referred to in sub-paragraph e) of the preceding paragraph with the member of Government responsible for communications.
Rejection of Applications
Applications shall be rejected at any stage of the tender proceedings in the event of any of the following situations:
a) Non-fulfilment of the provisions of articles 9, 11 and 16;
b) Non-fulfilment of the requirements and conditions of the tender or non-conformity as to the presentation of the documents accompanying the application, organized as per the specifications.
Assessment of Applications
1- The Committee is responsible for assessing the applications.
2- Assessment of the applications must take into account the following criteria in order of priority:
a) Absence or minimal direct or indirect participation of the public service telecommunications concessionaire in the share capital of the bidder, as per the terms of article 1 sub-paragraph b) of the concession bases of the public telecommunications service approved by Decree-law nº 40/95 of 15 February, or of operators licensed to provide SMT; in either case, absence or minimal participation of private shareholders who individually or together have holdings of 3% or more in the share capital of said companies:
b) The best conditions offered, namely the range and quality of the services and plan for coverage;
c) The best technical plan;
d) Best innovative and development factors;
e) Best technical qualifications;
f) Best economic and financial plan.
3- ICP shall conduct a technical examination of the applications and take any other steps requested by the committee.
4- The company that is awarded the license may not alter the structure and ownership of its share capital for a time limit of 12 years, unless authorized by the member of Government responsible for communications, preceded by an opinion issued by ICP.
5- Alteration to the structure and ownership of the share capital referred to in the preceding paragraph signifies an alteration to the license and must be set down in the deed of license, with payment of the applicable rate, to be deemed a revenue of the State.
Clarification to be provided by Bidders
1- Bidders undertake to give the committee all clarification required for assessment of the applications, such clarification to be provided by a qualified representative of the bidder.
2- Unless otherwise properly justified and accepted by the committee, non-fulfilment of the provisions of the preceding paragraph leads to exclusion from the tender.
1- The committee shall draw up a list classifying the bidders, based on proper grounds and, within a time limit of 35 working days counted from the date of the public act of the tender, shall propose attribution of the licence to the bidder that having complied with the conditions of the tender and the selection criteria, has earned the best classification. On the proposal of the committee the time limit indicated above may be extended by decision of the member of Government responsible for communications.
2- The member of Government responsible for communications must approve the proposal for attribution of the licence, such proposal having been submitted to him by the chairman of the committee.
3- ICP shall inform bidders by registered letter with acknowledgement of receipt about the decision concerning attribution of the license.
4- When the decision concerning the attribution of a license falls on a company to be incorporated the latter should, for purposes of the provisions of the final part of article 4 paragraph 2, ensure that incorporation takes place within the time limit of 30 working days counted from reception of the communication referred to in the preceding paragraph.
5- The committee reserves the right not to award the license in the case where the bids do not comply with the requirements of public use that are inherent to the service put up for tender.
1- The body to whom the license was attributed undertakes, within the time limit of 10 working days counted from the date of reception of the communication referred to in paragraph 3 of the preceding article or, in the case of a company not yet incorporated counted from fulfilment of the provisions of paragraph 4 of the same article, to increase the guarantee to the amount of PTE 350.000.000$00.
2- The guarantee referred to in the preceding paragraph shall remain in force for a period of five years and shall be annually and progressively redeemed up to the limit of one-fifth of its value, as and when the coverage plan contained in the license is annually fulfilled.
Issuance of the License
1- The license shall be issued by ICP once the provisions of the preceding article have been fulfilled, under the terms of and with the references as defined by Decree-law nº 346/90 of 3 November.
2- If, for no justifiable reason, the bidder who was awarded the license does not fulfil the provisions of paragraph 1 of the preceding article, on the proposal of ICP the member of Government responsible for communications shall return the classification list to the committee and determine that a new proposal for the attribution of the license be submitted within the time limit of 15 working days, under the terms of article 17 paragraph 1.
3- Approval of the new proposal shall determine the cancellation of the preceding license-attributing act.
Duties of the Licensee
1- The duties arising out of the terms of the tender and of the winning bid as well as the conditions of preference, which led to attribution of the license, shall for all intents and purposes constitute an integral part of the license.
2- Attribution of the license does not give the licensed operator any rights other than those arising out of the exact terms contained in the licensing deed; no facts may be invoked in whatever form regarding the attribution of new services or licenses or a change in circumstances.
3- The inter-operability of the fixed telephone service with SMT shall be governed by the legislation in force and by the regime contained in decision SEH of 27 February 1991 published in the 2nd series of the "Diário da República" - Official Government Gazette of 23 March 1991 and shall be applicable until 16 March 2007 at the latest.
Duration of the License
The license shall have a duration of 15 years.
Method for Counting the Time Limits
The method for counting the time limits established in these Regulations shall be governed by the rules of article 72 of the Code of Administrative Procedure.
Ministry of Equipment, Planning and Territorial Administration. Signed on 7 July 1997. The Minister for Equipment, Planning and Territorial Administration, João Cardona Gomes Cravinho.
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