In 2019, the European Commission published a contract notice for the award of a public contract for works, in the context of a restricted procedure.
The tender documents provided, in particular, for the following two selection criteria. On the one hand, the candidate was required to demonstrate that it had completed at least two projects of the same nature and complexity in the last eight years. On the other, if the candidate was a consortium, its lead member was required to be able to carry out at least 40% of the contract works using its own means.
Only candidates satisfying these selection criteria could be pre-selected and have their application assessed by the Commission in the light of the award criteria.
A consortium, the lead member of which was Intering, expressed its interest in the procurement procedure. However, the European Commission refused to pre-select that consortium on the grounds that it did not satisfy either of the above-mentioned selection criteria.
The Intering-led consortium complained about this decision, which caused the Commission to agree that the selection criterion regarding the percentage of contract works to be carried out by the consortium leader was unclear. Therefore, the Commission withdrew its decision and decided to leave aside that selection criterion.
The Commission then resumed the procedure but maintained its refusal to pre-select the Intering consortium as the latter still allegedly failed to demonstrate compliance with the other selection criterion, pertaining to the completion of similar projects in the last eight years.
The Commission eventually decided to award the contract to a different consortium.
Intering and the other members of the unselected consortium brought an action before the General Court of the EU, arguing in particular that by resuming the procurement procedure in spite of the modification of the selection criteria, the Commission had breached the principle of equal treatment.
In its judgment of 21 April 2021, the General Court ruled in Intering’s favour.
To that end, the General Court referred to the EVN and Wienstrom judgment, in which the Court of Justice had previously ruled that “where the review body annuls a decision relating to an award criterion, the contracting authority cannot validly continue the tender procedure leaving aside that criterion, since that would be tantamount to amending the criteria applicable to the procedure in question”.
In the General Court’s view, this case law, pertaining to award criteria, could be extended to selection criteria used in the context of restricted procedures such as the one at issue. Indeed, leaving aside a selection criterion affects not only candidates which were not selected due to a failure to comply with the selection criterion concerned, but also any potential candidate which had decided not to apply because it would not have complied with said selection criterion.
The General Court also underlined that the above conclusion could not be called into question by the fact that, in addition to the selection criterion left aside, the Intering-led consortium had also failed to comply with the other selection criterion pertaining to completion of similar projects in the last eight years.
Indeed, it could not be assumed that, in the event that the Commission had brought the procurement procedure to an end (which it should have) and started a new procedure, the latter selection criterion would have been maintained. In addition, in such a scenario, the Intering-led consortium could have submitted additional evidence which the Commission had not yet taken into account.
Please contact Peter Teerlinck or Raluca Gherghinaru for further information about this case and/or for general legal advice relating to public procurement.