(1) Cumulative compliance of criteria concerned with tenderers and their tenders...
Art 56(1) of Dir 2014/24 condenses the content of Art 44(1) of Dir 2004/18 and changes its drafting significantly in order to clarify that contracts can only be awarded where both the tenderer and its tender comply with all applicable requirements under the relevant procurement documents.
Nonetheless, in order to clarify this flexibility in the sequence of assessment of compliance with the applicable mandatory criteria, reg.56(3) PCR2015 follows Art 56(2) of Dir 2014/24 and expressly foresees the possibility for contracting authorities to ‘examine tenders before verifying the absence of grounds for exclusion and the fulfilment of the selection criteria’ but, in such case, ‘they shall ensure that the verification of absence of grounds for exclusion and of fulfilment of the selection criteria is carried out in an impartial and transparent manner so that no contract is awarded to a tenderer that should have been excluded … or that does not meet the selection criteria set out by the contracting authority’. This rule, which had no equivalent under Dir 2004/18, will only be applicable in connection with open procedures because in the rest of the procedures, a reversal of the sequence selection-award is not feasible.
This provision seems to anticipate itself the problems that such sequence can generate, given that contracting authorities will always have an incentive to ‘twist’ exclusion and selection criteria to be able to retain the best offer they have received. Moreover, unless the procurement is carried out under rare circumstances that make the assessment of the tender (both in technical and economic terms) simpler and quicker than the general assessment of the tenderers, there seems to be an advantage in proceeding first to exclude non-suitable or non-qualified tenderers in order to avoid the costs (in terms of time, at least) of evaluating their tenders. Moreover, the contracting authority can significantly reduce the cost of exclusion and selection analyses both for tenderers and for itself by resorting to the acceptance of the European Single Procurement Document and other facilitating measures under Article 59 of the new Directive (below section 4.5). Therefore, the practical impact of this new provision can be doubted, as contracting authorities may only find an advantage in the reversal of the assessment sequence in a limited number of open procedures and, even in those cases, they may want to avoid any potential challenge on the basis of discrimination derived from the ex post assessment of the tenderer that has submitted the best tender against exclusion grounds and qualitative selection criteria.
It is worth noting that Art 56(1) in fine of Dir 2014/24 opens the door to the use of public procurement decisions as a lever to promote enforcement of (or sanction the lack thereof) social, labour and environmental law—thereby strengthening the possibilities to use procurement for the pursuit of such ‘secondary’ or ‘horizontal policies’ [see S Arrowsmith, ‘Horizontal Policies in Public Procurement: A Taxonomy,’ (2010) 10(2) Journal of Public Procurement 149 and the various contributions to S Arrowsmith and P Kunzlik (eds) Social and Environmental Policies in EC Procurement Law (Cambridge, Cambridge University Press, 2009)]. Reg.56(2) PCR2015 contains the same rule.
In more detail, the provision contemplates that ‘Contracting authorities may decide not to award a contract to the tenderer submitting the most economically advantageous tender where they have established that the tender does not comply with the applicable obligations referred to in Article 18(2)’ of Dir 2014/24—that is, ‘obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X’—which can be modified by the Commission from time to time, according to Art 56(4) of Dir 2014/24.
This should be connected to the provision of Art 57(4)(a) of Dir 2014/24 [see comment to reg.57 tomorrow], which indicates that ‘Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator … (a) where [they] can demonstrate by any appropriate means a violation of applicable obligations referred to in Article 18(2)’. It is important to stress that such exclusion could take place at any moment, which includes the exclusion right at the point of making an award decision.
In my view, both Art 56(1) in fine and 57(4)(a) of Dir 2014/24 serve exactly the same function—ie the strengthening of the social, labour and environmental aspects of the public procurement function, although in a manner that can seriously diminish its economic effectiveness and that can impose a burden difficult to discharge on contracting authorities (which could now be in a difficult position where they will need to assess tenderers’ and tenders’ compliance with an increased set of diverse rules of a social, labour and environmental nature).
On a different note (but possibly related if the contracting authority needs further information to assess compliance with eg social, labour or environmental rules, above), it is also relevant that Art 56(3) of Dir 2014/24, as transposed literally by reg.56(4) PCR2015, is extending the powers of contracting authorities to seek clarifications or additional information from candidates and tenderers. Previously, Art 51 of Dir 2004/18 simply foresaw that contracting authorities ‘may invite economic operators to supplement or clarify the certificates and documents’ concerned with their personal situation—ie the documents and certificates concerned with the (lack of) grounds for exclusion and compliance with qualitative selection criteria (including their suitability to pursue a professional activity, their economic and financial standing, their technical and/or professional ability, or their systems to ensure compliance with quality assurance and environmental management standards). Interestingly, the Court of Justice of the European Union has strengthened this possibility in its recent Judgments Case C-599/10 Slovensko and C-336/12 Manova.
On its part, Art 56(3) of Dir 2014/24/reg.56(4) PCR2015 go well beyond the current rules and empower contracting authorities to adopt a more proactive role. Specifically, these provisions foresee that ‘Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may, unless otherwise provided by the national law implementing this Directive, request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency’.
Moreover, an interpretation of this clause in view of the CJEU case law may result in a positive obligation to contact tenderers and seek clarification or additional information (given that contracting authorities do not have an unfettered discretion not to exercise their power to seek clarification; see case T-211/02 Tideland Signal v Commission), at least under certain conditions, such as when ‘the circumstances of the case, of which [the contracting authority] is aware, suggest that the ambiguity probably has a simple explanation and is capable of being easily resolved’ [see case T-195/08 Antwerpse Bouwwerken v Commission].