Recent case lawDr Albert Sanchez-GraellsReader in Economic Law

Network of Agencies Procurement Officers

28-29 September 2017, EFSA, Parma

Agenda

To discuss recent case law of the CJEU concerning general procurement rules and rules on EU Institutional procurement

Focus on a selection of topics, concerning: jurisdictional issues, transparency, debarment and rejection of offers, abnormally low tenders and contract modifications

Cases of the last 24 months aprox.

Jurisdictional issues

CJEU jurisdiction

extends as far as EU

Budget goesElitaliana v Eulex Kosovo, C-439/13 P, EU:C:2015:341 (12 November 2015)

“the measures at issue, whose annulment was sought on the basis of an infringement of the rules of EU public procurement law, related to the award of a public contract which gave rise to expenditure to be charged to the European Union budget. Accordingly, the contract at issue is subject to the provisions of the Financial Regulation” (at para [48])

GC and call-offs within

framework contractsEuropean Dynamics Luxembourg and Others v EMA, T-441/15, EU:T:2017:104 (17 February 2017) cfr Evropaïki Dynamiki v Commission (OLAF), T-498/11, EU:T:2014:831 (26 September 2014)

"[t]he present case differs from [T-498/11] in that … in the present case, as regards the implementation of a multiple framework contract with cascade allocation, the specific contract has already been allocated according to the position of the economic operators in the cascade, without the need for any further competition between those [economic operators]. Therefore, if the first economic operator is unable to provide the required service or not interested in doing so, the second best operator will be contacted. If the latter is unable to provide the required service or is not interested, then the third best operator will be contacted" (at para [24]).

Transparency

Limits on ex ante

transparencyTNS Dimarso, C-6/15, EU:C:2016:555 (14 July 2016)

Offers a recap of ex ante disclosure obligations + establishes a test to consider whether there is an obligation to disclose evaluation matrix at the time when the award criteria and their weighting are published. The general reading of the case is that there is no obligation, but the requirements in para [26] are rather restrictive

Timing issues

European Dynamics Luxembourg and EvropaïkiDynamiki v Joint undertaking Fusion for Energy, T-553/13, EU:T:2015:918 (2 December 2015)

No obligation to complete evaluation within period of validity of offers; “the only consequence that may arise from that provision for the contracting authority is that it cannot oblige a tenderer whose tender has expired to sign and perform a contract based on the conditions set out in that tender” (at para [27]).

Limits on obligation to

provide reasons (I)PRIMA v Commission, T-722/14, EU:T:2016:61 (4 February 2016)

Exact content of debriefing obligations: “it is sufficient for the contracting authority to forward to the unsuccessful tenderer, in addition to the name of the awardee, the respective scores of their offers under each of the award criteria and the comments underpinning those ratings, so as to allow said tenderer to understand what were the strengths and weaknesses of its offer and how the awardee's offer defeated his” (at para [37], own translation from FR)

Limits on obligation to

provide reasons (II)Cofely Solelec and Others v Parliament, T-419/15, EU:T:2017:8 (17 January 2017)

Contextual approach to the duty (at paras [60] – [61]): “… there is no requirement that the decision should specify all the relevant elements of fact and of law. The sufficiency of the statement of reasons … may be assessed in the light not only of its wording but also of the context ... It is sufficient that the decision expounds the main points of law and fact in a succinct but clear and relevant manner ...

… Furthermore, where a decision has been adopted in a context which is well known to the person concerned, it may be motivated in a succinct manner ...” (own translation FR)

Exclusion / debarment

and rejection of offers

Self-cleaning

NC v Commission, T-151/16, EU:T:2017:437 (27 June 2017)

“Although the contested decision shows that the remedial measures taken by the applicant were taken into account to determine the duration of the exclusion imposed, no reason is given in that decision as to why those measures were insufficient to satisfy the conditions' for an operator that has taken certain remedial measures demonstrating its reliability not to be excluded from the contracts and grants of the Union” (at para [58])

Formalities and equal

treatmentGfi PSF v Commission, T-200/16, EU:T:2017:294 (3 May 2017)

Difficulties in fact-finding generallyoverruled by functional approach to guaranteeing confidentiality of the offersprior to award

Abnormally low

tenders

Substantive aspects

TV1 v Commission, T-700/14, EU:T:2017:35 (26 January 2017)

Irrelevance of deviations from budget where it is faulty due to unaccounted cost falls (at para [49])

Irrelevance of incumbency: “Otherwise, the incumbent provider could systematically question the reliability of the cheaper offers of the other tenderers, even if they are not abnormally low, but only economically more advantageous” (at [59])

Procedural aspects

(I)European Dynamics Luxembourg and Others v Agence, T-392/15, EU:T:2017:462 (4 July 2017)

“where a contracting authority accepts a tender, it is not required to state explicitly in response to any request for a statement of reasons ... [why] the tender it accepted does not appear to it to be abnormally low. If that tender is accepted by the contracting authority, it follows implicitly, although not necessarily, that the contracting authority considers that there was no evidence that that tender was abnormally low. However, such reasons must be brought to the attention of an unsuccessful tenderer which has expressly requested them” (at para [93])

Procedural aspects

(II)European Dynamics Luxembourg and Evropaïki Dynamiki v Commission,

T-74/15, EU:T:2017:55 (2 February 2017)

“It cannot be accepted that a contracting authority should explain the not

abnormally low nature of a tender merely by stating that such was considered

not to be the case” (at [47]).

“the contracting authority must set out the reasoning on the basis of which,

on the one hand, it concluded that, because of its principally financial

characteristics, such an offer complied with the national legislation of the

country in which the services were to be carried out in respect of the

remuneration of staff, contribution to the social security scheme and

compliance with occupational safety and health standards and, on the other,

it determined that the proposed price included all the costs arising from the

technical aspects of the selected tender” (at [49]).

Contract modifications

Non-statutory

constraintsFinn Frogne, C-549/14, EU:C:2016:634 (7 September 2016)

Creates significant difficulties for termination of the contract due to break up of commercial relationship and/or for convenience

In EU Institutional procurement context –differences depending on choice of law?

Thank you for your

attentionStay in touch:

a.sanchez-graells@bristol.ac.uk

@asanchezgraells

http://www.howtocrackanut.com