Public Procurement News

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.

 In the judgment C-23/20, the European Court of Justice ruled that the procuring entity has to publish certain information in the contract notice. Namely an estimated quantity and/or value, and a maximum quantity and/or value. In addition that the framework agreement will no longer have any effect once that maximum limit is reached. This is, one could say, not an intuitive interpretation from the court. It comes to its conclusion in the light of i.e. the principles of equal treatment and transparency. The case probably requires procuring entities to change practices to adhere to it. Read the entire case here

Simplified, that was the question in the case  C‑631/21,  from det European Court of Justice. The court found that  if  the Joint Venture did not rely on the competence of one or more of the partners, only an ESPD from the Joint Venture was necessary. If, on the other hand, the Joint Venture needed the capacity of one of its partners to qualify, then the Joint Venture also need to deliver an ESPD from that partner.  Even though the case is rooted in directive 2014/24/EU, the case is gives equal guidance to public procurement under directive 2014/25/EU.