Public Procurement News

 In the judgment C-737/22 the European Court of Justice made som nuances in the classification of negotiation.   In the case, a central government purchasing unit in Denmark had published a competition on 4 February 2020 for a framework agreement about library material with preparatory services. The award was to be given to the provider with the lowest price. For reasons of competition, the contract was divided into separat lots; east and west. In the tender documents, the procuring entity wrote that the tenderer who offered the lowest price would be awarded the contract for the west.  Furthermore, that the tenderer ranked as No. 2 would be offered the contract for the east, under the condition that the price for the east contract was reduced to the price for the west contract. ECJ states that this possibility was regulated in the tender documents. It was not possible to negotiate the price up or down compared to prices submitted before the offer deadline expired. There was therefo

  An country song about public procurement   [Verse] In a town where the roads are dusty and worn, Folks gather 'round when a new day's born, With a clipboard in hand and a thoughtful plan, It's time to see who'll lend a helping hand.   [Verse 2] On the courthouse steps, they post the call, For contractors big, and farmers small, From fixing fences to paving streets, It's the lifeblood of this community heat.   [Chorus] It's a bid for love in a tiny town, Where hard work's king, and the heart is bound, In every handshake and every deal, It's public procurement with a hometown feel.   [Verse 3] Meet old Joe, he's the man with the trucks, Turns on a dime and never ducks, With a twinkle in his eye, he makes his bid, Says, "I'll dig those ditches like my Daddy did."   [Bridge] Where trust is built on faith and pride, Nobody's got a thing to hide, With a glance and a nod, they kno

Sometimes it can be hard to know the difference, and the risk is high. If leasing, its exempted from the rules of public procurement. But if the need is fulfilled with a public works contract, it must be treated in adherence to the rules to avoid any sanctions. Luckily the European Court of Justice decided on this matter in the case C-537/19. Highlighting the question whether the specifications set out by the tenant were intended to satisfy stipulations that went beyond what a tenant of a similar building might normally require and lead to the tenant being regarded as having exercised a decisive influence on its design. So, the way forward is to think whether you are behaving like a tenant would normally behave in a similar situation. And if not, whether you have exercised a “decisive influence” on the buildings design. If you have, than you have to follow the procedural rules of public works contracts. Read the entire case here

It might be the case that also the rest of the tenders should be excluded.  Then, hypothetically, the procurement entity should cancel the procedure and may publicise a new contract notice where you have the possibility to partake.  According to a judgement from the European Court of Justice, C ‑ 333/18, this hypothetical scenario gives you a legitimate reason to challenge the award to see if your competitors in fact should be excluded. Read the entire case here

Should the tenderer deliver only the documentation relevant to proving the fulfilment of the qualification criteria? I.e. the documentation for a specific technical capability criterion, if the tenderer relies on another economic actor for that criterion. The answer is yes and can firstly be founded in the principle of proportionality. If the procuring entity requires more documentation than necessary, it would not be in line with this principle. Secondly, it can be deduced from the principle of equal treatment. It would be relatively more difficult for smaller companies, like SMBs, to qualify for the contest, if each of the companies the SMB relied on would have to document fulfilment of all the qualification criteria. We can also see that the answer from these two deductions is supported by the purpose of effectivity.  

The focus on sustainability and protection of the environment in public procurement is increasing. Both domestically and on the level of the European Union.  This is accompanied by i.e. the Corporate Sustainability Reporting Directive (CSRD), and the coming Directive on Corporate Sustainability Due Diligence (CSDDD), which the private sector must follow.  When trying to adapt procurement to this changed context, under the spell of the sellers marketing, one sometimes forgets that the most sustainable and environmentally friendly solution can be to buy nothing.