In this month’s digest the Advocate General has been considering whether the in-house exception, something the new directives seek to codify, should be extended.
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Advocate General considers scope of the in-house exception (Datenlotsen Informationssysteme GmbH v Technische Universität Hamburg-Harburg (Case C-15/13) (Advocate General’s opinion))
In this opinion, the Advocate General (AG) considered a contract involving the provision of an information management system between a public university (classified as a contracting authority under Directive 2004/18) and a non-profit-making limited company (100% held by the German State and Länder), could not benefit from the in-house exception. The AG stated that a horizontal in-house transaction could only benefit from the in-house exception if the:
- Contracting authority has a similar exclusive control over both parties to the contract
- Objective of the transaction was to carry out public interest tasks for the body that controls the two entities.
This was not the situation in this case.
The opinion also includes a useful consideration of the application of the co-operation between public bodies to deliver a public task exception, stating that the fact that a body was established as a private company did not mean it could not benefit from this exception (provided all of the shareholding was held by public bodies) and that a fee can be paid for services provided, it is just that it should not include a profit element.
It is hoped that further decisions or guidance will clarify the requisite degree of control a contracting authority must exercise to benefit from the in-house exception beyond the statement in the new draft procurement directive that it must “exercise a decisive influence over both strategic objectives and significant decisions of the controlled legal person.”
General Court dismisses appeal based on incorrect use of selection and award criteria (European Dynamics v European Medicines Agency (Case T 158/12))
The General Court dismissed an appeal by European Dynamics against a decision by the European Medicines Agency (EMA) to award it a second-place priority framework contract for the supply of external services in the area of software applications for online transactional processing systems. European Dynamics considered that they should have been granted a first-place priority contract.
The General Court rejected claims that the EMA had applied criteria that were not set out in the contract specifications; had applied duplicate selection and award criteria; and had breached the principle of transparency.
Conflict of interest where the successful tenderer had been involved in scoping the tender (Complaint 1005/2011/MMN against the European Commission)
The European Ombudsman has published a final decision on a complaint concerning a tender procedure run by the European Commission. The Ombudsman found that it is good administrative practice to avoid actual, potential and apparent conflicts of interest in the context of tender procedures.
In this case, the Commission allowed an expert of the successful tenderer to participate in the drafting of the terms of reference for the tender. This gave rise to at least an apparent conflict of interest and constituted an instance of maladministration.