Sometimes a potential tenderer does not submit a tender because it cannot meet the requirements of the tender. Subsequently, the tender is provisionally awarded to another party and the suspicion arises that this party should have been excluded from the tender. Can the potential tenderer who decided not to tender still object? The Court of Justice recently ruled in an Italian case that a Member State may have a regulation stating that a tenderer who could not or was not allowed to participate, because it did not meet the requirements, can no longer challenge a provisional award to another party. A decisive factor in this was the fact that the potential tenderer had already – unsuccessfully – challenged the requirements before the court.
The facts
A contracting authority, CA, has – in Italy – organized a tender for helicopter services. In addition, tenderers had to have a special certification as proof of their technical and professional competence. VZ did not have this special certification and was therefore unable to meet the requirements. VZ appealed to the court in January 2019 against the requirement to possess this special certification, but without success. This judgment was upheld on appeal and became final in February 2020. As a result, VZ was unable to participate in the tender.
The Italian Competition and Market Authority (AGCM) found, by decision of 13 February 2019, that the only bidders in the aforementioned tender (BO, JF, and RT) had committed a serious infringement of Article 101 TFEU by entering into a horizontal agreement that was contrary to with competition law. The purpose of this agreement was to fix the prices of the helicopter services. Sanctions have been imposed on these tenderers in that context. The appeal and appeal against this have been declared unfounded with regard to the determination of the violation by JF and RT. CA deemed this irrelevant for the tender and awarded one lot to BO and one lot to RT. VZ has pointed out the aforementioned judgments to CA. In addition, VZ argued that it follows that there was serious professional misconduct, which justifies the exclusion of RT. VZ thus requested the annulment of the provisional award decision. CA takes the view that the award does not contain additional information of which it was not aware and upholds the award decision. VZ appeals against this. The judge then asks preliminary questions to the Court of Justice (hereinafter: ‘the Court ‘).
The question
The Court is concerned with the question of whether an entrepreneur who was unable to participate in a tender because he did not meet the requirements set and whose appeal against the use of these requirements in the tender has been irrevocably rejected, may challenge the refusal to make the award decision. in the same tender. To this end, the entrepreneur argues that it has been established by a court decision that all tenderers have committed an infringement of competition law within the same sector as that to which the tender relates.
Answer question
The Court ruled that, under the Legal Protection Line, appeal procedures must at least be accessible to anyone who has or has had an interest in the award of a particular contract, and who is or is likely to be harmed by an alleged violation of public procurement law. In the opinion of the Court, VZ cannot be regarded as such an entrepreneur. In that regard, the Court refers to a previous judgment in which it was held that if an economic operator has been definitively excluded from the tender prior to the award decision, this economic operator need not be granted access to an appeal procedure against the award decision to another tenderer. In the opinion of the Court, this situation is comparable to the present situation. After all, prior to the award decision is also final here it has been established that VZ could not meet the requirements and therefore did not register. The situation is therefore comparable to the situation where an entrepreneur has not registered and therefore has no interest. It is irrelevant that VZ can now meet the requirements. Nor does the fact that all tenderers who took part infringed the competition rules justify a different conclusion. In short, VZ could no longer challenge CA’s award decision.
Conclusion
The same applies to an entrepreneur who has not registered for a tender because he did not meet the requirements and his appeal against the use of these requirements has been irrevocably rejected, as for tenderers who have been definitively excluded or entrepreneurs who have not submitted a tender at all. Such parties can no longer challenge an award decision by the contracting authority, even if it has been confirmed by a court decision that all tenderers in the tender have committed an infringement of competition law within the same sector as that to which the tender relates.
