In its Judgment of 24 May 2016 in MT Højgaard and Züblin, C-396/14, EU:C:2016:347, the Court of Justice of the European Union (CJEU) ruled on whether the principle of equal treatment of economic operators must be interpreted as precluding a contracting entity from allowing an economic operator that is a member of a group of two undertakings which was pre-selected and which submitted the first tender in a negotiated procedure for the award of a public contract, to continue to take part in that procedure in its own name, after the dissolution of that group due to the bankruptcy of the other partner.
This case is important because, even if it is based on the 2004 EU utilities procurement rules (Dir 2004/17), it makes general statements that carry over to public procurement covered by any other set of EU rules (notably Dir 2014/24), or even simply covered by the EU general principle of equal treatment and non-discrimination--thus pervading (almost) all instances of procurement at Member State level. Also of note, the MT Højgaard and Züblin Judgment explores the implications of the application of the principle of equal treatment for intra-tender competition and supports a flexible approach to the modification of bidding consortia that seems to be clearly pro-competitive. However, the CJEU's reasoning in the specific case comes with some difficulties attached, particularly in terms of the desirability of bidding consortia beyond the specific tender and the compatibility of EU public procurement and competition law.
Findings of the Court
In MT Højgaard and Züblin, the CJEU was presented with a case where a contracting authority was running a negotiated procedure with a prior call for competition, and where the contracting authority indicated that it wanted to proceed to negotiations with between four and six candidates. It received expressions of interest from five candidates, which included both the group consisting of MT Højgaard and Züblin (‘the Højgaard and Züblin group’) and the group consisting of Per Aarsleff and E. Pihl og Søn A/S (‘the Aarsleff and Pihl group’). The contracting authority pre-selected all five candidates and invited them to submit tenders. One of the pre-selected candidates subsequently withdrew from the procedure.
There are some procedural complications due to the parallel existence of the domestic bankruptcy proceedings but, for the purposes of our discussion, the relevant fact is that Pihl entered into bankruptcy prior to the submission of the tender, which de facto implied the dissolution of the Aarsleff and Pihl group, but Aarsleff decided to proceed as a solo tenderer. The contracting authority was thus left with two options: (a) to consider that Aarsleff was not qualified on its own merits and to carry on with the negotiated procedure with 'only' three tenders; or, conversely, (b) to consider that Aarsleff could benefit from the qualification of the group to which it initially belonged and go forward with its desired minimum of four tenders.
After some analysis, the contracting authority 'informed all the tenderers of its decision to allow Aarsleff to continue to take part, alone, in the procedure. [It] explained that decision by stating that Aarsleff, which was the leading contracting company in Denmark in terms of turnover for the financial years 2012 and 2013, satisfied the conditions required for participation in the negotiated procedure, even in the absence of the technical and financial capacities of Pihl . In addition, Aarsleff had taken over the contracts of more than 50 salaried staff of Pihl, including the individuals who were key to the implementation of the project concerned' (C-396/14, para 14). Aarsleff was thus allowed to submit a tender and, after a further round of best and final offers between the three better placed tenderers, it was awarded the contract. Unsurprisingly, the Højgaard and Züblin group challenged the award decision.
As we will see, allowing Aarsleff to progress to the negotiation phase as a solo tenderer raises two separate issues: 1) whether Aarsleff needed to team up with Pihl at all in order to participate in the negotiated procedure [notably because, as confirmed by the referring Danish public procurement complaints board, 'on the basis of the information provided concerning Aarsleff, that company would have been pre-selected if it had sought an invitation to take part in its own name instead of doing so through the intermediary of the Aarsleff and Pihl group', para 18]; and 2) whether Aarsleff's technical standing was being reassessed at a point where no other candidates or potentially interested undertakings were having their technical standing assessed, which would in itself be a competitive advantage. However, the CJEU does not really focus on either of these issues in detail and the test it creates seems to miss some important analytical issues--which assessment is too conveniently left to the referring authority.
Rather, the CJEU focuses on an analysis of the situation as a modification of the composition of the bidding consortium formed by Aarsleff and Pihl. In doing so, the CJEU resorts to its case law in Makedoniko Metro and Michaniki (C‑57/01, EU:C:2003:47) and considers that in the absence of EU and Danish rules on the composition of bidding consortia, 'the question of whether a contracting entity may allow such an alteration must be examined with regard to the general principles of EU law, in particular the principle of equal treatment and the duty of transparency that flows from it, and the objectives of that law in relation to public procurement' (para 36). It then carries on with such an assessment and, fundamentally, determines that
38 The principle of equal treatment of tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, requires that all tenderers must be afforded equality of opportunity when formulating their tenders, and therefore implies that the tenders of all competitors must be subject to the same conditions ...
41 ... [the rules on qualitative selection] may be qualified in order to ensure, in a negotiated procedure, adequate competition ...
42 ... the contracting entity considered that there should be at least four candidates in order to ensure such competition.
43 If, however, an economic operator is to continue to participate in the negotiated procedure in its own name, following the dissolution of the group of which it formed part and which had been pre-selected by the contracting entity, that continued participation must take place in conditions which do not infringe the principle of equal treatment of the tenderers as a whole.
44 In that regard, a contracting entity is not in breach of that principle where it permits one of two economic operators, who formed part of a group of undertakings that had, as such, been invited to submit tenders by that contracting entity, to take the place of that group following the group’s dissolution, and to take part, in its own name, in the negotiated procedure for the award of a public contract, provided that it is established, first, that that economic operator by itself meets the requirements laid down by the contracting entity and, second, that the continuation of its participation in that procedure does not mean that the other tenderers are placed at a competitive disadvantage.
45 In the main proceedings, it must, first, be stated that it is apparent that had Aarsleff, alone, made an application for an invitation to take part in the procedure, it would have been pre-selected ...
47 Last, as regards the fact that, after the dissolution of the Aarsleff and Pihl group, Aarsleff took on the contracts of 50 salaried staff of Pihl, including individuals who were key to the implementation of the construction project concerned, it is for the referring court to determine whether Aarsleff thereby acquired a competitive advantage at the expense of the other tenderers (C-396/14, paras 38-47, references omitted and emphasis added).
There are some initial remarks to make in view of this. First, the CJEU continues to be largely captured by the trap of tender-specific reasoning when it indicates that 'the aim of [the principle of equal treatment of tenderers] is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure' (para 38, emphasis added). This is so because the CJEU fails to take into account that modification of procedural requirements (such as qualitative selection) once the tender is on-going can have discriminatory effects against interested undertakings that decided not to participate in the tender due to the requirements now being modified.
More importantly, the CJEU seems to give great weight to the fact that the contracting authority had determined that, for there to be effective competition in that specific tender, 'there should be at least four candidates in order to ensure such competition' (para 42). This is troubling both because the establishment of a bracket of four to six candidates is an arbitrary decision and it is hard to accept that having three offers is insufficient in the specific tender while the contracting authority decided to have a round of final and best offers precisely with three tenderers only.
Thus, from a material point of view, the way the CJEU conceptualises the relevant competitive framework (as intra-tender, and subject to the minimum participation of four candidates) is very artificial. Nonetheless, these issues do not seem to weigh too heavily in the actual reasoning of the CJEU, which imposes a flexible approach to the rules on modification of bidding consortia, subject to respect for the qualitative selection requirements imposed by the contracting authority (ie, no selective/preferential waivers), as well as the absence of competitive advantage.
changes in the composition of bidding consortia prior to award,
even when they are only a duo
In abstract and general terms, the approach taken by the CJEU should be welcome because it focuses on the creation of the maximum possible flexibility so as to preserve (intra-tender) competitive pressure. This is something I had broadly advocated for:
Member States should depart from formal criteria based on rigid interpretations of the principle of equal treatment in designing their domestic provisions on bidding consortia—such as rules regulating their composition, their modification, etc. Rules on bidding consortia should adopt a pro-competitive orientation and, consequently, should foster participation of consortia to the maximum possible extent permitted by competition law. In this regard, the general criterion should be to allow the most flexible solutions unless their implementation could be materially negative for the development of the tender process. Along these lines, in relation with, for example, modifications of a group of contractors—such as the inclusion of new members, exclusion or substitution of previous members, re-allocation of shares to the consortium, or of responsibilities and tasks, etc—these should be allowed under national public procurement rules if they are not material, in the sense that the modified composition or internal rules of the consortium have not altered the contracting authority’s decision to qualify the group or to allow it to proceed to any of the stages of the procurement process already conducted. It is submitted that this flexibility should go as far as to allow for the substitution of a consortium with one of its (leading) members, as long as it can prove that it still fulfils all the relevant requirements set by the tender specifications and documents (for instance, by subcontracting to the former members of the consortium or with equally acceptable or equivalent third companies)—since, at least functionally, the group of undertakings involved in the tender would not be materially altered, even though the distribution of risks, responsibilities and benefits amongst them might have significantly changed. Such flexibility is required by the need to favour the continued participation of consortia (or, at least, their core members) in the tender process, since it increases competition and enhances the chances of the public buyer obtaining value for money [A Sanchez-Graells, Public procurement and the EU competition rules, 2nd edn (Oxford, Hart, 2015) 339, footnotes omitted].
However, the issue here is that, in the specific case, it is unclear how Aarsleff could simultaneously have been qualified without resort to Pihl's specialist technical capabilities (particularly, in terms of human resources), and at the same time the fact that it took over the contracts of 50 of Pihl's employees is relevant in terms of ensuring that the changes to the consortium are not material for the purposes of allowing it to proceed as a solo tenderer. Without more details on the case, this is difficult to assess this issue, but it would seem that for Aarsleff's to meet the qualitative selection criteria on its own, it should have demonstrated to have capacity to carry out the specialist bits of the project independently. If this is true, then it would seem that Aarsleff and Pihl's consortium should not have been allowed at all, due to the uncompensated restriction of competition implicit in such type of teaming arrangement (see below).
However, if Aarsleff had not demonstrated specialist capabilities at qualitative selection stage (because it was not a qualitative selection requirement) and this is only assessed at award stage, it seems that allowing it to rely on the fact that it took over employees from Pihl is a borderline case of conflation of selection and award criteria (not allowed under the rules of Dir 2004/17, but now allowed under the 2014 public procurement package). This can be problematic on its own, but the case does not provide enough information to assess it. At any rate, though, what seems very clear is that the contracting authority seemed to take a "dynamic approach" to the assessment of the technical capabilities of Aarsleff (first as part of the consortium and then on its own, but having taken over part of Pihl's workforce), which seems to create a competitive advantage per se [or, at least, to warrant a very close scrutiny, as stressed by AG Mengozzi in his Opinion (EU:C:2015:774, paras 80-82, not available in English)].
By not establishing this in clear terms and including this concern only as a caveat of the main test created in the MT Højgaard and Züblin Judgment, the CJEU leaves the assessment open to the consideration of the referring Danish complaints board. In that regard, it is important to stress that, in the latter's view,
[the contracting authority] laid down minimum conditions as to quality with respect to the technical capacities of the tenderers and was to undertake a qualitative assessment of the applications only if their number was greater than six. Aarsleff could therefore have been pre-selected in its own name, without being part of the Aarsleff and Pihl group. The fact that Aarsleff took the place of that group had, moreover, no effect on the situation of tenderers, in so far as none of the candidates was excluded in the pre-selection phase and none would have been rejected if Aarsleff itself had applied for an invitation to take part (C-396/14, para 19).
This may well lead the Danish complaints board to conclude that Aarsleff did not gain any competitive advantage over the other candidates participating in the tender. If nothing else, from the beginning, they knew that the capacities of Aarsleff and Pihl would be combined to submit a competing tender. The fact that Aarleff did that under its own name rather than in the name of the group could be seen as a formality without any practical relevance.
However, the broader point is that, once more, this type of reasoning can be affected by the trap of tender-specific reasoning. If it had been foreseeable for undertakings that decided not to participate in the tender that they would only need to demonstrate specialist technical capacity at tender award stage, then this is correct. However, if it would have been the reasonable interpretation that interested economic operators had to demonstrate such specialist capacity at qualitative selection stage, then the analysis would be wrong by failing to identify the discrimination/ disadvantage/ unequal treatment of potentially interested candidates that decided not to participate in the tender.
Thus, it would seem legally sounder to decide the case on the basis of whether the possibility to demonstrate that capacity at tender-specific level (ie award stage) was foreseeable ex ante (and legal, which seems difficult to justify on the basis of Dir 2004/17 and the Lianakis line of case law that controlled its interpretation), rather than whether it is discriminatory ex post. In any case, however, there is the broader issue that the CJEU does not tackle head on, and this is whether the Aarsleff and Pihl's consortium should not have been allowed at all due to its potential incompatibiity with competition law, which requires some attention.
the desirability of bidding consortia more broadly; did the CJEU miss it?
Overall, and from a logical perspective, the discussion on the rules applicable to changes in the composition of bidding consortia and their permissibility necessarily comes second to the broader question of the desirability of bidding consortia in themselves. In my view, this should be assessed under the following framework:
public procurement rules on teaming and joint bidding should be in perfect compliance with article 101 TFEU on agreements between undertakings and its case law—since public procurement rules cannot establish derogations or carve-outs to this fundamental provision of primary EU law ... In this regard, teaming and joint bidding must be seen as instances of collaboration between undertakings and, consequently, should be prohibited if they have as their object or effect the prevention, restriction or distortion of competition (ex art 101(1) TFEU), unless (i) they meet the requirements for the legal exemption of article 101(3) TFEU, (ii) they can be considered de minimis, or (iii) they are otherwise exempted from the general prohibition. Of particular relevance here will be the interpretation that should be given to article 101(3) TFEU in the field of public procurement—ie, what requirements should be met by efficient teaming and joint bidding agreements to benefit from the legal exemption. In this regard, it should be noted that—provided the conditions regarding the indispensability of the restrictions derived from the agreement, and regarding the preservation (rectius, non-elimination) of competition in the market are complied with, so that teaming and joint bidding agreements do not distort competition in the market—otherwise restrictive consortia agreements are desirable if they expand the number of candidates or tenderers (ie, if they are concluded between firms that do not have the economic capabilities to undertake the procured contract individually) and/or if they intensify the competition between existing candidates or tenderers (ie, if they improve upon the participants’ efficiency to the benefit of the public buyer). Therefore, the relevant criteria from a competition law perspective seem to be that teaming and joint bidding must contribute to intensifying competition within the tender while not generating significant competitive distortions in the market—eg, not generating significant exclusionary effects or otherwise imposing unnecessary restrictions on the market behaviour of the parties to the consortium agreement [Sanchez-Graells, Public procurement and the EU competition rules (2015) 338-339, footnotes omitted and emphasis added].
In this specific case, and on the basis of the limited information available in the MT Højgaard and Züblin Judgment, there seems to be a prima facie case to consider that Aarsleff could have participated in the tender on its own and, consequently, there was no justification for it to team up with Pihl if it was a potential competitor, or to prevent the creation of valuable subcontracting relationships between Pihl and third parties. At the very least, Aarsleff should be required to demonstrate and justify the advantages that it intended to achieve with its collaboration with Pihl and how these would have (or indeed have) been passed on to the contracting authority.Thus, a more detailed assessment would be necessary to determine whether the formation of the Aarsleff and Pihl group was in itself restrictive of competition--eg by allowing Aarsleff to 'grab' the specialist technical capabilities of Pihl in order to prevent it from teaming up with a potential competitor or to compete for the contract on its (if it had the necessary capacities)--or not. This is something only the Danish complaints board can do at this stage, if at all.
Overall, it can well be that all the issues discussed here are simply apparent problems derived from the very stylised version of the facts available in the MT Højgaard and Züblin CJEU Judgment. However, in my view, they serve as a cautionary tale against the adoption of seemingly competition-friendly solutions to deal with specific public procurement issues, without previously checking that the competitive situation is not conceived in an artificial manner (ie the need to avoid the trap of tender-specific reasoning) and that the more general compatibility between EU public procurement and competition law is ensured.