This is a blog about the use of emerging technologies to boost the governance of public procurement. It used to be a blog on EU law, with a focus on free movement, public procurement and competition law issues (thus the long archive of entries about those topics). I use it to publish my thoughts and to test some ideas. All comments are personal and in no way bind any of the institutions to which I am affiliated and, particularly, the University of Bristol Law School. I hope to spur discussion and look forward to your feedback and participation.
... as is apparent from paragraphs 30-32 of the judgment Lianakis and others (EU:C:2008:40) ... the Court has clearly distinguished award criteria from the selection criteria that are essentially linked to the assessment of the bidders' ability to perform the contract in question, and considered that the criteria relating to the experience, qualifications and means of ensuring proper performance of the contract in question belong to the latter category and, therefore, do not have the character of award criteria (C-641/13, para 36, own translation, emphasis added).
25 ... the case-law highlighted in the judgment in Lianakis and Others (C‑532/06, EU:C:2008:40) concerns the interpretation of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), which was repealed by Directive 2004/18, and that that judgment does not rule out the possibility that the contracting authority may, in certain circumstances, fix and apply a criterion [enabling evaluation of the teams specifically put forward by the tenderers for the performance of the contract and which takes into consideration the composition of the team and the experience and academic and professional background of the team members] at the stage of awarding the contract.
26 That judgment concerns the staff and experience of the tenderers in general and not, as in present case, the staff and experience of the persons making up a particular team which must actually perform the contract.
27 It should be noted, in relation to the interpretation of Article 53(1)(a) of Directive 2004/18 which is the subject of the referring court’s question, that that directive introduced new elements into the Union legislation on public procurement in relation to Directive 92/50.
28 First of all, Article 53(1)(a) of Directive 2004/18 provides that ‘the tender most economically advantageous’ is to be identified ‘from the point of view of the contracting authority’, thereby giving the contracting authority greater discretion in its decision-making.
29 Secondly, the third paragraph of recital 46 in the preamble to Directive 2004/18 states that, where the contracting authorities choose to award a contract to the most economically advantageous tender, they are to assess the tenders in order to determine which one ‘offers the best value for money’, which tends to reinforce the importance of quality in the award criteria for public contracts.
30 Furthermore, Article 53(1) of Directive 2004/18 does not set out an exhaustive list of the criteria which may be used by the contracting authorities in determining the economically most advantageous tender, and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract. Their choice is nevertheless limited to criteria aimed at identifying the tender which is economically the most advantageous (see, to that effect, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraphs 28 and 29 and the case-law cited). To that end, Article 53(1)(a) of Directive 2004/18 specifically requires that the award criteria be linked to the subject-matter of the contract (see judgment in Commission v Netherlands, C‑368/10, EU:C:2012:284, paragraph 86).
31 The quality of performance of a public contract may depend decisively on the ‘professional merit’ of the people entrusted with its performance, which is made up of their professional experience and background.
32 This is particularly true where the performance of the contract is intellectual in nature and, as in the main proceedings in the present case, concerns training and consultancy services.
33 Where a contract of this nature is to be performed by a team, it is the abilities and experience of its members which are decisive for the evaluation of the professional quality of the team. That quality may be an intrinsic characteristic of the tender and linked to the subject-matter of the contract for the purposes of Article 53(1)(a) of Directive 2004/18.
34 Consequently, that quality may be included as an award criterion in the contract notice or in the relevant tendering specifications (C-601/13, paras 25 to 34, emphasis added).
Firstly, I think that nothing in the EU Directive has changed the documentary requirements as such (and, hence, nothing in the PCR2015 by implication: see explanatory memorandum, where it is clearly indicated that reg.53 is a copy-out of art 53 Dir 2014/24). All provisions on electronic communication are ... about process/technology but not substance (see recital 52 of Dir 2014/24). Hence, they should not alter existing lawful practice.Secondly, from a strictly technical perspective in terms of statutory interpretation of reg.53 PCR2015, I think there is a good systematic point to support this interpretation in reg.53(6) itself, as it clearly shows that further documentary disclosure (beyond the tender documents initially made available) is possible—up until 6 days before tender submission. In my view, given the general possibility to disclose detailed technical plans, drawings and specifications not originally included in the tender documents, the issue then rests on two points: transparency and equal treatment.On transparency, if the contracting authority clearly in the pre-PQQ contract notice that the detailed plans will be made available only to shortlisted tenderers, this should create no problems provided that the information disclosed at that stage allows potentially interested bidders to have a rough idea of the project and its requirements, and to complete satisfactorily the PQQ phase. This was clearly the position of the ECJ: ‘all technical information relevant for the purpose of a sound understanding of the contract notice or the tendering specifications must be made available as soon as possible to all the undertakings taking part in a public procurement procedure’ [Case T-345/03 Evropaïki Dynamiki v Commission (CORDIS) [2008] ECR II-341 145. See also Case T-297/05 IPK International v Commission [2011] ECR II-1859 124].On equal treatment, ... the key issue involves the need to make sure that no undertaking is advantaged (because they are involved in the planning, fundamentally) as ‘the unequal treatment consisting in a delay in making certain technical information available to the tenderers, with the exception of the successful tenderer, constitutes a procedural defect’ [Case T-345/03 Evropaïki Dynamiki v Commission (CORDIS) [2008] ECR II-341 160 and ff. See also Case T-50/05 Evropaïki Dynamiki v Commission (ECMS) [2010] ECR II-1071, where delays in disclosure of source code to tenderers other than the incumbent are discussed].All that is just to indicate that the contracting authority should clarify why it is necessary and proportionate for it to use this two-stage disclosure process (expediency, cost, etc – the fact that it is a consolidated practice under the pre-existing regulations may also help) and then avoid restricting access to any information that would have allowed specific tenderers to participate (such as the need to carry out specialist work, for instance), or that advantages specific undertakings. If those risks are covered, I see no problem in ... carrying on as they used to under the PCR2006 [ie, to use the restricted procedure to carry out a two part procurement process that enables the contracting authority to progress procurement whilst still working on the drawings and detailed specifications etc. that will form the tender documents after invitation].
41 According to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the contested measure being annulled (judgments of 14 September 1995 in Antillean Rice Mills and Others v Commission, T‑480/93 and T‑483/93, ECR, EU:T:1995:162, paragraph 59; 25 March 1999 in Gencor v Commission, T‑102/96, ECR, EU:T:1999:65, paragraph 40; and 14 April 2005 in Sniace v Commission, T‑141/03, ECR, EU:T:2005:129, paragraph 25). That interest must be vested and present (judgment of 17 September 1992 in NBV and NVB v Commission, T‑138/89, ECR, EU:T:1992:95, paragraph 33) and is evaluated as at the date on which the action is brought (judgment of 16 December 1963 in Forges de Clabecq v High Authority, 14/63, ECR, EU:C:1963:60, p. 357, at 371, and judgment in Sniace v Commission, cited above, EU:T:2005:129, paragraph 25).
42 In the present case, as EASA observes, each framework contract is implemented by specific contracts concluded according to the cascade mechanism. According to Section 2.7.1 of the tender specifications, when more than one contractor is nominated, EASA determines the specifications of the services required and will first address its request to the contractor who has been ranked first. If this contractor is unable to meet any of the criteria, EASA will address the same request to the contractor who has been ranked second. This process will end with conclusion of a specific contract with one of the contractors who were ranked among the top three and who can meet all the specifications of the services. It follows that if the applicant had been ranked first according to the cascade, this might have secured an advantage for it and that its ranking in a lower position amounts to a significant loss of opportunity. Such a ranking decision therefore produces legal effects vis-à-vis the applicant.
43 Moreover, the fact that the framework contracts which are the subject of the call for tenders at issue have been signed and implemented does not call into question the applicant’s legal interest in bringing proceedings. It is settled case-law that, even where a decision to award a contract has been fully implemented for the benefit of other competitors, a tenderer retains an interest in the annulment of such a decision; such interest consists either in the tenderer’s being properly restored by the contracting authority to his original position or in prompting that authority to make suitable amendments in the future to the tendering procedure if that procedure is found to be incompatible with certain legal requirements (see, to that effect, judgments of 6 March 1979 in Simmenthal v Commission, 92/78, ECR, EU:C:1979:53, paragraph 32, and of 14 October 1999 in CAS Succhi di Frutta v Commission, T‑191/96 and T‑106/97, ECR, EU:T:1999:256, paragraph 63). In the present case, the applicant retains at least an interest in the tenderers’ being correctly ranked according to the cascade (T-297/09, paras 41 to 43, emphasis added).
As regards lots 2, 3 and 5, it is true that the contested decisions are vitiated by an inadequate statement of reasons and must be annulled for that reason. However, the inadequacy of the statement of reasons does not mean that the award of the contracts to the tenderers ranked higher in the cascade constitutes wrongful conduct or that there is a causal link between that fact and the loss alleged by the applicant (see, to that effect, judgment of 25 February 2003 in Renco v Council, T‑4/01, ECR, EU:T:2003:37, paragraph 89). It follows that the application for damages in respect of the alleged harm suffered as a result of the contested decisions in the context of lots 2, 3 and 5 of the call for tenders at issue must be dismissed as unfounded in so far as it is based on the inadequate statement of reasons for those decisions (T-297/09, para 185, emphasis added).
37 The finding of bias on the part of an expert requires in particular the assessment of facts and evidence that comes within the competence of the contracting authorities and the administrative or judicial control authorities.
38 It should be pointed out that neither Directive 89/665 nor Directive 2004/18 contains specific provisions in that regard [and, it is worth adding, Directive 2014/24 does not contain any specific procedural rules as to how to assess these issues either].
39 The Court has consistently held that, in the absence of EU rules governing the matter, it is for every Member State to lay down the detailed rules of administrative and judicial procedures for safeguarding rights which individuals derive from EU law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see judgment in Club Hotel Loutraki and Others, C‑145/08 et C‑149/08, EU:C:2010:247, paragraph 74 and the case-law cited).
40 In particular, the detailed procedural rules governing the remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities must not compromise the effectiveness of Directive 89/665 (see judgment in Uniplex (UK), C‑406/08, EU:C:2010:45, paragraph 27 and case-law cited).
41 It is not, as a general rule, contrary to those principles for an expert’s bias to be established in a Member State solely on the basis of an objective situation in order to prevent any risk that the public contracting authority could be guided by considerations unrelated to the contract in question and liable, by virtue of that fact alone, to give preference to one tenderer.
42 Concerning the rules on evidence in that regard, it should be pointed out that ... the contracting authorities are to treat economic operators equally and non-discriminatorily and to act in a transparent way. It follows that they are assigned an active role in the application of those principles of public procurement.
43 Since that duty relates to the very essence of the public procurement directives (see judgment in Michaniki, C‑213/07, EU:C:2008:731, paragraph 45), it follows that the contracting authority is, at all events, required to determine whether any conflicts of interests exist and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. It would be incompatible with that active role for the applicant to bear the burden of proving, in the context of the appeal proceedings, that the experts appointed by the contracting authority were in fact biased. Such an outcome would also be contrary to the principle of effectiveness and the requirement of an effective remedy ... in light, in particular, of the fact that a tenderer is not, in general, in a position to have access to information and evidence allowing him to prove such bias.
44 Thus, if the unsuccessful tenderer presents objective evidence calling into question the impartiality of one of the contracting authority’s experts, it is for that contracting authority to examine all the relevant circumstances having led to the adoption of the decision relating to the award of the contract in order to prevent and detect conflicts of interests and remedy them, including, where appropriate, requesting the parties to provide certain information and evidence.
45 Evidence such as the claims in the main proceedings relating to the connections between the experts appointed by the contracting authority and the specialists of the undertakings awarded the contract, in particular, the fact that those persons work together in the same university, belong to the same research group or have relationships of employer and employee within that university, if proved to be true, constitutes such objective evidence as must lead to a thorough examination by the contracting authority or, as the case may be, by the administrative or judicial control authorities.
46 Subject to compliance with the obligations under EU law, and specifically with those referred to in paragraph 43 above, the concept of ‘bias’ and the criteria for it are to be defined by national law. The same applies to the rules relating to the legal effects of possible bias. Thus, it is for national law to determine whether, and if so to what extent, the competent administrative and judicial authorities must take into account the fact that possible bias on the part of the experts had no effect on the decision to award the contract (C-538/13, paras 37 to 46, emphasis added).
