Slides of the presentation given to the Annual Meeting of the Network of Agencies Procurement Officers on recent case law of the Court of Justice on selected public procurement matters.

1. Recent case law
Dr Albert Sanchez-Graells
Reader in Economic Law
Network of Agencies Procurement Officers
28-29 September 2017, EFSA, Parma

2. Agenda
To discuss recent case law of the CJEU
concerning general procurement rules and rules
on EU Institutional procurement
Focus on a selection of topics, concerning:
jurisdictional issues, transparency, debarment
and rejection of offers, abnormally low tenders
and contract modifications
Cases of the last 24 months aprox.

3. Jurisdictional issues

4. CJEU jurisdiction
extends as far as EU
Budget goesElitaliana v Eulex Kosovo, C-439/13 P,
EU:C:2015:341 (12 November 2015)
“the measures at issue, whose annulment was
sought on the basis of an infringement of the
rules of EU public procurement law, related to the
award of a public contract which gave rise to
expenditure to be charged to the European Union
budget. Accordingly, the contract at issue is
subject to the provisions of the Financial
Regulation” (at para [48])

5. GC and call-offs within
framework contracts
European Dynamics Luxembourg and Others v EMA, T-441/15,
EU:T:2017:104 (17 February 2017) cfr Evropaïki Dynamiki v
Commission (OLAF), T-498/11, EU:T:2014:831 (26 September 2014)
"[t]he present case differs from [T-498/11] in that … in the present
case, as regards the implementation of a multiple framework
contract with cascade allocation, the specific contract has
already been allocated according to the position of the economic
operators in the cascade, without the need for any further
competition between those [economic operators]. Therefore, if
the first economic operator is unable to provide the required
service or not interested in doing so, the second best operator
will be contacted. If the latter is unable to provide the required
service or is not interested, then the third best operator will be
contacted" (at para [24]).

6. Transparency

7. Limits on ex ante
transparency
TNS Dimarso, C-6/15, EU:C:2016:555
(14 July 2016)
Offers a recap of ex ante disclosure obligations +
establishes a test to consider whether there is an
obligation to disclose evaluation matrix at the
time when the award criteria and their weighting
are published. The general reading of the case is
that there is no obligation, but the requirements in
para [26] are rather restrictive

8. Timing issues
European Dynamics Luxembourg and Evropaïki
Dynamiki v Joint undertaking Fusion for Energy,
T-553/13, EU:T:2015:918 (2 December 2015)
No obligation to complete evaluation within
period of validity of offers; “the only
consequence that may arise from that provision
for the contracting authority is that it cannot
oblige a tenderer whose tender has expired to
sign and perform a contract based on the
conditions set out in that tender” (at para [27]).

9. Limits on obligation to
provide reasons (I)
PRIMA v Commission, T-722/14, EU:T:2016:61
(4 February 2016)
Exact content of debriefing obligations: “it is
sufficient for the contracting authority to forward to
the unsuccessful tenderer, in addition to the name of
the awardee, the respective scores of their offers
under each of the award criteria and the comments
underpinning those ratings, so as to allow said
tenderer to understand what were the strengths and
weaknesses of its offer and how the awardee's offer
defeated his” (at para [37], own translation from FR)

10. Limits on obligation to
provide reasons (II)
Cofely Solelec and Others v Parliament,
T-419/15, EU:T:2017:8 (17 January 2017)
Contextual approach to the duty (at paras [60] – [61]):
“… there is no requirement that the decision should specify
all the relevant elements of fact and of law. The sufficiency of
the statement of reasons … may be assessed in the light not
only of its wording but also of the context ... It is sufficient
that the decision expounds the main points of law and fact in
a succinct but clear and relevant manner ...
… Furthermore, where a decision has been adopted in a
context which is well known to the person concerned, it may
be motivated in a succinct manner ...” (own translation FR)

11. Exclusion / debarment
and rejection of offers

12. Self-cleaning
NC v Commission, T-151/16, EU:T:2017:437
(27 June 2017)
“Although the contested decision shows that the
remedial measures taken by the applicant were taken
into account to determine the duration of the
exclusion imposed, no reason is given in that
decision as to why those measures were insufficient
to satisfy the conditions' for an operator that has
taken certain remedial measures demonstrating its
reliability not to be excluded from the contracts and
grants of the Union” (at para [58])

13. Formalities and equal
treatment
Gfi PSF v Commission, T-200/16,
EU:T:2017:294 (3 May 2017)
Difficulties in fact-finding generally
overruled by functional approach to
guaranteeing confidentiality of the offers
prior to award

14. Abnormally low
tenders

15. Substantive aspects
TV1 v Commission, T-700/14, EU:T:2017:35
(26 January 2017)
Irrelevance of deviations from budget where it is
faulty due to unaccounted cost falls (at para [49])
Irrelevance of incumbency: “Otherwise, the
incumbent provider could systematically question
the reliability of the cheaper offers of the other
tenderers, even if they are not abnormally low, but
only economically more advantageous” (at [59])

16. Procedural aspects
(I)
European Dynamics Luxembourg and Others v Agence,
T-392/15, EU:T:2017:462 (4 July 2017)
“where a contracting authority accepts a tender, it is not
required to state explicitly in response to any request for a
statement of reasons ... [why] the tender it accepted does not
appear to it to be abnormally low. If that tender is accepted
by the contracting authority, it follows implicitly, although
not necessarily, that the contracting authority considers that
there was no evidence that that tender was abnormally low.
However, such reasons must be brought to the attention of
an unsuccessful tenderer which has expressly requested
them” (at para [93])

17. Procedural aspects
(II)European Dynamics Luxembourg and Evropaïki Dynamiki v Commission,
T-74/15, EU:T:2017:55 (2 February 2017)
“It cannot be accepted that a contracting authority should explain the not
abnormally low nature of a tender merely by stating that such was considered
not to be the case” (at [47]).
“the contracting authority must set out the reasoning on the basis of which,
on the one hand, it concluded that, because of its principally financial
characteristics, such an offer complied with the national legislation of the
country in which the services were to be carried out in respect of the
remuneration of staff, contribution to the social security scheme and
compliance with occupational safety and health standards and, on the other,
it determined that the proposed price included all the costs arising from the
technical aspects of the selected tender” (at [49]).

18. Contract modifications

19. Non-statutory
constraints
Finn Frogne, C-549/14, EU:C:2016:634
(7 September 2016)
Creates significant difficulties for termination of
the contract due to break up of commercial
relationship and/or for convenience
In EU Institutional procurement context –
differences depending on choice of law?

20. Thank you for your
attention
Stay in touch:
a.sanchez-graells@bristol.ac.uk
@asanchezgraells
http://www.howtocrackanut.com