Article 3 - Applicable legislation
Article 5 - Provision of clarifications
Article 1 - Purpose
Comments received
Only one entity that requested confidentiality commented on this article.
Understanding of ICP-ANACOM
Initially, ICP-ANACOM considered providing only 2 x 30 MHz in the 1800 MHz frequency band. However, in view of the expression of interest, within the scope of the public consultation to which the present report refers, regarding the auctioning of the entire spectrum available in each frequency band, as well as the recent announcements by the industry/technological development operators/equipment in the 1800 MHz, ICP-ANACOM decided to provide the remaining spectrum of this band - where 2 x 57 MHz are free -, as included in articles 1 and 7 of the new draft regulation.
In addition, and from the viewpoint of increasing the efficiency in the use of the radio spectrum in the 1800 MHz band (both current as well as future), ICP-ANACOM opts to reshuffle the current rights of use with a view to making them contiguous, as laid out in article 31 of the new draft regulation.
Article 2 - Definitions
Comments received
PT GROUP
The PT GROUP mentions that it does not understand the reason for the reference, in sub-paragraph f) of this article, to the fact that the minimum variation on the best offer of the previous sequence is set by the Management Board of ICP-ANACOM when, in reality, said variation is already pre-established in article 19 of the Draft Auctioning Regulation.
OPTIMUS
OPTIMUS proposes alterations to sub-paragraphs d), k) and l) of this article:
- Sub-paragraph d) - substitution of the "distribution stage" for the "bidding stage";
- Sub-paragraph k) - substitution of the current definition of the "reserve price" for the "minimum amount to be bid in the first sequence of each lot";
- Sub-paragraph l) - substitution of the current definition of the "lot price" for the "minimum amount to be bid in the first sequence of each lot";
On the other hand, it suggests that the definition of "lot price" should precede the definition of "reserve price".
Understanding of ICP-ANACOM
With regards to the definitions, it should be mentioned that, in the review of the auction model, ICP-ANACOM redefines some definitions and eliminates others.
In relation to the comments presented by the PT GROUP, the definition of increment is withdrawn since it is considered unnecessary and, as for the comments of OPTIMUS, the comment relative to the substitution of the designation of "distribution phase" for bidding phase" was taken on board, and is set out in sub-paragraph f) of article 2 of the new draft regulation. As for the other comments, they are not taken on board since they are not in line with the new model.
Article 3 - Applicable legislation
Comments received
PT GROUP
In the opinion of the PT Group, this article should clearly establish the admissibility of the transmission of the rights of use of frequencies object of the auction, similarly to what has happened in other procedures relative to the allocation of rights of use of frequencies.
In addition, with regards to no. 4 of this article, it mentions that it does not understand to which mandates, injunctions and authorities this provision intends to make reference to, nor does it understand to what extent the holders of the rights of use of frequencies allocated following the auction become subject to such mandates and injunctions differently to any other economic agents. In this way, it proposes the abolition of the mentioned provision.
Understanding of ICP-ANACOM
The comments of the PT Group regarding article 3 are taken on board. In the new draft regulation there is no provision similar to no. 4 of article 3 and, on the other hand, the regime of transmissibility of the rights of use of frequencies is clarified in no. 3 of article 36.
Article 4 - Management Board
Comments received
PT GROUP
The PT GROUP considers that the heading of this provision should be "Powers of the Management Board".
With regards to the responsibilities listed in this article, the PT GROUP considers that:
- It be clarified that all candidates have access and/or knowledge of the determinations adopted by the Management Board and that the way that information is transmitted to said candidates should be stipulated.
- The 24 hours deadline set in sub-paragraph a) is unjustifiably short to address possible shortcomings of the application process. This issue is considered important since not addressing the shortcomings in question within the deadline set leads to the exclusion of the bidder. It is thus the PT GROUP's understanding that the candidates should be granted a deadline of 2 days, identical to that set for the BWA auction.
- It is unacceptable that the Management Board may exclude bidders based on suspicions of “practices of collusion" since, except in the unlikely case of confession, it will be difficult to acquire conclusive evidence of practices of collusion. In fact, it is totally unclear how that body can determine, with a degree of certainty compatible with an (irrefutable) exclusion decision, the existence or not of collusion.
It thus considers that the Management Board should only be responsible for denouncing to the competent authorities the practices of collusion regarding which it has well-founded suspicions. The Auction Regulation should establish a rule that allows, if such practices are proven, the offenders to be forced to return the rights of use in question and to be penalised financially (for example, the bond is not returned in case of well-founded suspicions of collusion).
OPTIMUS
OPTIMUS proposes the following amendments to the present article:
- It suggests including "its" before "Management Board" in no. 1;
- In sub-paragraph a) of its no. 2, it proposes extending the maximum deadline of 24 hours, by including the following text: "Granting the interested parties a reasonable deadline, to be set by the Management Board of ICP-ANACOM, of never more than 3 working days, to proceed (...)";
- In sub-paragraph f) of no. 2 of this article it suggests a text similar to that used in article 70, no. 2, sub-paragraph g), and no. 3, of the Public Procurement Code: "Exclude bidders, whether or not they have been declared winners, if the bidding reveals the existence of strong indications of acts, agreements, practices or information likely to distort the competition rules, with exclusion to be immediately communicated to the Competition Authority";
- The inclusion of the reasons for the suspension of the act during the course of the auction as well as the definition of what will happen, in the case of interruption of a sequence, to any submitted bids, as well as whether a maximum number of requests for suspension by the bidders will be established;
- The express indication of an electronic address and a telephone number to use under exceptional circumstances, and not only for requests for clarification as set out in article 11.
VODAFONE
VODAFONE requests:
- The extension of the deadline for correction of application requests, considering that 24 hours is clearly insufficient for such purposes;
- Clarification in the text of the draft regulation on the possibility of the candidates making corrections to their applications, given the absence of a clear mechanism on this possibility.
Understanding of ICP-ANACOM
ICP-ANACOM, in the new draft regulation, adopts some of the comments of the PT GROUP and OPTIMUS relative to the article on the powers of the Management Board. Therefore:
- The heading of the article has changed, having adopted the suggestion of the PT GROUP;
- The concern voiced regarding the deadline for addressing any shortcomings of the application process is considered justified and relevant, with the deadline having been extended to 2 days, according to sub-paragraph a) of no. 2 of article 4 of the new draft regulation;
- As for the exclusion of bidders on suspicion of collusion, Optimus' proposal is adopted, according to sub-paragraph g) of no. 2 of article 4 of the new draft regulation.
All other suggestions, duly analysed, were not considered adequate or necessary.
In relation to the requests of VODAFONE, it is clarified that the deadline for verification of the applications by the Management Board has been extended, according to the provisions in no.1 of article 14 of the new draft regulation.
Article 5 - Provision of clarifications
Comments received
PT GROUP
The PT GROUP considers that no. 1 of this article should establish a minimum deadline of 3 days to be granted to candidates to provide clarifications, given the seriousness of the consequences of failing to provide the clarifications requested by the Management Board in a timely manner, which is proposed in no. 2 of this article (exclusion of bidders).
GRUPO ZON
GRUPO ZON considers that the clarifications requested must be justified, fulfilling the principle of providing reasons for administrative acts. The clarification must be related to the auction process and must serve to clarify some doubt with an impact on the outcome of the same.
Understanding of ICP-ANACOM
Taking into account the speed at which one intends the auction process to be undertaken, ICP-ANACOM is of the opinion that the deadline for provision of clarifications, as well as the respective form, must be set in accordance with the degree of complexity of said clarifications.
Firstly, there is a general duty for the candidates to collaborate in the appropriate clarification of all the facts and, secondly, all the clarifications and information requests made by ICP-ANACOM are always duly justified, complying, under the law, with the principles of proportionality and suitability for the purpose intended.
