Article 57 of the Public Procurement Directive 2014/24/EU (hereafter “Directive 2014/24”) lists a number of cases in which a contracting authority may or must exclude a tenderer from a procurement procedure.
The tenderer may nevertheless invoke corrective measures (the so-called “self-cleaning measures”) to prove its reliability even though it falls under certain grounds for exclusion (Article 57 (6) of Directive 2014/24). However, Directive 2014/24 does not stipulate when or how the tenderer should demonstrate that these corrective measures were taken.
In its judgment of 14 January 2021 (case C-387/19), the Court of Justice held that, when submitting its tender, a tenderer may spontaneously have to prove the corrective measures taken, if such an obligation is provided for in a clear, precise and unambiguous manner, both in the applicable national rules and in the tender documents. In the absence of such an obligation, the tenderer can still invoke the corrective measure at a later stage.
It should be noted that this request for a preliminary ruling was submitted by the Belgian Council of State (Conseil d’État – Raad van State), on the basis of the old Belgian procurement legislation. This legislation did not oblige the tenderer to prove corrective measures spontaneously. In the case pending before the Belgian Council of State, the contracting authority had excluded a tenderer for grave professional misconduct. The excluded tenderer protested that it had not been given the chance to prove its reliability by means of corrective measures.
The new Belgian procurement legislation (law of 17 June 2016) now expressly provides that a tenderer must prove, on its own initiative, the corrective measures taken.
Remember, forewarned is forearmed: tenderers should carefully verify whether national law and the tender documents require corrective measures to be demonstrated at the time of submitting a tender.
Please contact Peter Teerlinck or Raluca Gherghinaru for further information about this case and/or for general legal advice relating to public procurement.