REUTERS | Zohra Bensemra

Public procurement case digest (March 2015)

March’s case digest includes an ECJ preliminary ruling on the effect of bias on the award of a public contract and the right to bring a challenge out of time, and a General Court decision annulling certain tender decisions taken by the European Aviation Safety Agency.

Please feel free to submit a comment below or send us an Ask query if you have any views on the cases covered, or think that we have missed a case that should be brought to the attention of public procurement practitioners.

ECJ rules on award criteria based on staff qualifications (Ambisig v Nersant)

The ECJ has handed down a ruling on a reference from a Portuguese court on questions relating to the use in a procurement procedure of a contract award criterion relating to the qualifications of the staff who will perform the contract.

The ECJ held that, in relation to contracts for the provision of services of an intellectual nature, training and consultancy, Article 53(1)(a) of Directive 2004/18 does not preclude the contracting authority from using an award criterion that enables the evaluation of the teams specifically put forward by the tenderers for the performance of the contract and that takes into consideration the composition of the team and the experience and academic and professional background of the team members.

The ECJ noted that a contracting authority is entitled to take “quality” into account as an award criterion. The quality of performance of a public contract may depend decisively on the professional merit of the people entrusted with its performance. This is particularly true where the performance of the contract is intellectual in nature. It is the abilities and experience of the members of the team who will perform the contract that are decisive for the evaluation of the professional quality of the team.

Under the Public Contracts Directive 2014 (2014/24/EU), implemented in the UK (excluding Scotland) through the Public Contracts Regulations 2015 (SI 2015/102) contracting authorities are now expressly permitted to use the organisation, qualification and experience of staff assigned to performing the contract as award criteria, where the quality of the staff assigned can have a significant impact on the level of performance of the contract.

ECJ preliminary ruling on the effect of bias on the award of a procurement contract (eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos)

The ECJ has handed down its ruling on a preliminary reference from a Lithuanian court on the interpretation of Directive 89/665 and Directive 2004/18, specifically the effect of bias on the award of a public contract and the right to bring a challenge out of time against that award.

The ECJ ruled that EU law does not preclude a finding that the tender evaluation was unlawful, solely on the basis that the tenderer had significant connections with experts appointed by the contracting authority to evaluate the tenders. The unsuccessful tenderer need not provide tangible proof of bias. National law should determine whether it is relevant that any possible bias had no effect on the decision to award the contract.

The right to bring a challenge must remain open after the deadline set by national law, where a reasonably well-informed and normally diligent tenderer would only have understood the tender conditions after the contracting authority had explained its decision. This right may be exercised until the period prescribed for bringing proceedings against the decision to award the contract has expired.

Finally, a contracting authority can use as an evaluation criterion the degree to which tenders are consistent with the requirements set out in the tender documentation.

General Court dismisses second appeal by IDT Biologika (IDT Biologika v European Commission).

On 18 March 2015, the General Court dismissed an appeal by IDT Biologika GmbH against a decision of the Delegation of the European Union to the Republic of Serbia rejecting the tender submitted by IDT Biologika in response to the call for tenders for the supply of a rabies vaccine to the Serbian Ministry of Agriculture, Forestry and Water Supply. The General Court dismissed the applicant’s claims that the contracting authority had manifestly erred in applying the technical specifications to the winning tender.

General Court annuls certain tender decisions taken by the European Aviation Safety Agency (Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Aviation Safety Agency).

The General Court has annulled certain decisions taken by the European Aviation Safety Agency (EASA) in the context of its evaluation of tenders for framework contracts for the supply of IT services (divided into five lots). Although the applicant had been awarded framework contracts for four lots, it contested the ranking accorded it compared with the two other bidders that were also awarded framework contracts. It had been ranked either second or third and so would only be offered a specific contract under the framework if the higher ranked tenders were not appointed.

The General Court rejected all arguments relating to an alleged failure to state reasons and manifest errors of assessment in relation to one of the contract lots. However, in relation to three lots, the General Court found that the EASA had failed to provide an adequate statement of reasons. In particular, it had not provided sufficient information on the characteristics and relative advantages of the tender ranked first. This constituted a breach of essential procedural requirements, resulting in the annulment of the decisions relating to the ranking of the applicants.

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