June’s case digest includes a High Court decision considering a challenge the operation of a framework agreement for the supply of locum doctors, and an Advocate General opinion on the interpretation of Articles 47 and 48 of Directive 2004/18.
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High Court rejects action challenging operation of framework agreement for supply of locum doctors (Medicure Ltd v The Minister for the Cabinet Office)
The High Court has dismissed an action that challenged the operation of a framework agreement for the supply of locum doctors. The claimant alleged that the framework agreement was being operated in a way that was materially different from what had been stated in the tender documents or was allowed under the terms of the agreement. Services were being procured under call-off contracts that were excluded from the framework, and this represented an illegal variation of the framework agreement. It also meant that the claimant’s tender had been unfairly rejected. Therefore, the claimant alleged breaches of the principles of transparency and fairness in the Public Contracts Regulations 2006.
The High Court found, however, that there was no basis in fact in the claimant’s allegations. There was no discrepancy between the tender documents and the framework agreement. The services now being procured by customers were included both in the original tender documents and in the framework agreement. There was, therefore, no illegal variation or improper use of the framework agreement. Further, the claimant had no basis for arguing that its tender had been unfairly rejected (in any event this claim was out of time).
Advocate General opinion on the interpretation of Articles 47 and 48 of Directive 2004/18 (Ostas celtnieks SIA v Talsu novada pašvaldība, Iepirkumu uzraudzības birojs (AG’s Opinion))
Advocate General Wathelet has handed down an opinion on a reference for a preliminary ruling from a Latvian court on whether Articles 47 and 48 of Directive 2004/18 should be interpreted as precluding specifications in public procurement tenders which insist that, in the event of the contract being awarded to a tenderer which relies on the capacities of other contractors, that tenderer must, before the contract is awarded, enter into a binding co-operation or partnership agreement with those undertakings.
Advocate General Wathelet considered that such an obligation seems contrary to Directive 2004/18 in that economic operators are permitted to rely on the capacities of other entities as part of their tenders subject only to the condition that they are able to prove that they are able to rely on the other entities. The Advocate General considered that one of the primary objectives of the EU public procurement rules is to attain the widest possible opening-up to competition and that the requirement for the winning tenderer to enter into binding agreements with undertakings whose capacities it needs to execute the contract limits the number of potential economic operators who will be able to bid on the contract.
Advocate General opinion on location requirement in procurement procedure (Grupo Hospitalario Quirón SA v Departamento de Sanidad del Gobierno Vasco et Instituto de Religiosas Siervas de Jesús de la Caridad (AG’s Opinion))
Advocate General Szpunar has handed down an opinion on a preliminary reference ruling from a Basque court regarding a location requirement in a call for tenders for public health services.
The call for tenders related to two contracts for public health surgical services to be provided by public health surgeons, but carried out in private hospitals with the aim of reducing waiting times for patients in Bilbao. The tender specifications stated that the contract services must be carried out in within the city limits of Bilbao. A prospective tenderer, the Grupo Hospitalario Quirón, owns a hospital located in Erandio, a town located near Bilbao and accessible by Bilbao public transport systems, but outside the city limits.
The Advocate General considered that the requirements in the tender specifications limited the number of economic operators who would be able to bid, in breach of Articles 2 and 23 of Directive 2004/18 and that the requirement could not be justified in this case as it did not seem to be excessively difficult for either patients or surgeons to access a hospital located near Bilbao, although this being a matter for the referring court to decide based on the facts of the case.