Nuances from the ECJ on the prohibition to negotiat in a case of partial offers

 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 therefore nothing that could classify as negotiation, and thus neither contrary to the principle of equal treatment nor transparency.

The court also states that it is irrelevant to its decision whether it is a matter of a tender with or without prequalification, because the situation is similar from the point when the prequalified tenderers are invited.

Read the entire case here

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