Comments to Danish Draft Guidelines on Joint Tendering

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The Danish Competition and Consumer Authority has published draft guidelines on joint bidding under competition law and invited comments by 1 September 2017. The following are the comments I have provided in the context of this public consultation. It will be interesting for me to see if the Authority takes any of these issues into account in the final version of its guidance.

The document provides a useful overview of the issues involved in an analysis of the compatibility of undertakings’ collaboration for the submission of joint tenders for public contracts with Article 101 TFEU (and domestic equivalents). The guidance is largely applicable to subcontracting arrangements as well, and it usefully incorporates recent examples of competition investigations in Scandinavian jurisdictions—with special attention given to the recent EFTA Ski Taxi Judgment.[1] It is particularly welcome that the Danish Competition and Consumer Authority has made the effort of publishing the guidelines in English, which can position them as an important point of reference in all EU/EEA jurisdictions after their official adoption.

The draft guidelines pivot centrally around the consideration of whether undertakings seeking to collaborate in the submission of a joint tender could bid independently for a given contract. That is, they follow the standard approach of considering that collaboration in the form of joint bidding (or subcontracting) is problematic where it reduces the level of competition that could otherwise exist for a public contract, unless it generates net efficiencies that are passed on to the contracting authority.[2] From that perspective, the draft guidelines send some useful clear messages, such as the need:

  1. for undertakings to conduct objective self-assessments of their own capacity to individually perform the contract prior to engaging in discussions with potential consortium partners;
  2. to tailor the analysis to the size and requirements of the lots in which a contract can be divided, rather than limiting the assessment to a holistic view in relation to the execution of the whole contract;
  3. to carry out case-by-case assessments of that capacity and the ensuing warning against stable joint tendering arrangements that fail to meet the thresholds for the creation of a full functioning joint venture; and
  4. to keep adequate records of those assessments for the purposes of enabling full and considerate responses to requests for information in the context of a competition investigation.

Given the complexity of the topic, however, there are some aspects of the draft guidelines that are less clear cut and where, in my opinion, there is scope for improvement and further clarification in the guidance finally adopted by the Authority. The assessment of relationships of potential competition in the context of restrictions of competition by object and the treatment of risk-driven collaborations deserve some careful consideration. These are issues that have spillover effects on the treatment of exchanges of information between undertakings considering bidding jointly for a public tender. This contribution addresses these three issues.

1. Treatment of potential competition

 The guidelines concentrate on the analysis of joint tendering by competitors and, implicitly, recognise that non-competing undertakings can freely cooperate in the context of public procurement (as in any other area of economic activity). This could be said explicitly, but there is no indication to the contrary in the draft guidelines. However, given the broad approach to the consideration of potential competition relationships between consortium members, and the assumption that joint bidding can be assessed as a restriction of competition by object because it involves price setting (following the EFTA Ski Taxi Judgement, above, in p. 20, box 2.11), the guidelines create some uncertainty.

On the one hand, because they indicate the possibility of joint tendering benefitting from block exemption regulations (BERs, see p. 30, para 3.2), despite the fact that price fixing is a hardcore restriction that excludes the applicability of the BERs. It would thus need to be clarified whether the Authority considers joint tendering as a restriction by object structurally involving price fixing or not, as well as the consequences of the position taken on this point. On the other hand, the guidelines create uncertainty because they do not address the tricky boundary issue of joint tendering by potential competitors as clearly as it would be possible.

The ambivalence or lack of clarity of the guidelines on this issue permeates the analysis and sometimes results in confusing expressions, such as the indication that chapter 3 assesses “the conditions that must be fulfilled for a consortium (including between competitors) to be exempted from the prohibition against agreements that restrict competition” (p. 23, introduction, emphasis added). Literally, this statement is incorrect, as joint bidding by consortia between non-competing undertakings does not run against the prohibition of Article 101(1) TFEU. In this case, it is possible that some word (such as “potential” competitors) is missing, but it is also possible that the guidelines are not too clearly set on the limits to the extension of the prohibition of Article 101(1) TFEU to (theoretically) potential competitors for a public contract.

This is an issue that has been recently discussed to some length,[3] and one which affects different aspects of the analysis under Article 101(1) and 101(3) TFEU that do not appear explicitly interconnected in the draft guidelines. In my view, there are two aspects that can be clarified.

First, the guidelines are not explicit in indicating how to carry out the analysis of an undertaking’s condition of potential competitor for a contract. There is just a mention to the effect that, in the assessment of “whether a company [rectius, undertaking] could [potentially] be able to bid individually, the Authority looks at whether this could constitute a sustainable economic strategy for the company (sic). This means firstly that a mere theoretical possibility of carrying out a contract is not enough; the possibility must be real and is shall include assessing that the offer must be profitable. The assessment shall be made on an objective basis” (p. 9, para 2.2).

This triggers two issues. One concerns the relevance of economic sustainability where the execution of a public contract is a one-off instance or involves a short to medium term project, where sustainability does not seem to raise particular issues or be the prime consideration. Another one concerns the assessment of profitability, in terms of the existence of economic incentives that justify potential additional investments, which requires a complex analysis of risk (discussed below 2). It seems clear that it is not sufficient to simply establish that an undertaking could have invested in additional resources to tender for the contract individually, but that it is necessary to establish that such investment was the rational economic decision to make under the circumstances (rather than engaging in a joint tender), which is always an ex post facto determination. In my opinion, great caution needs to be exercised here to avoid creating disincentives for joint tendering.

The guidelines could be improved by sketching, at the minimum, the circumstances in which the Authority would be willing to accept that an undertaking is justified in foregoing the potential investment to participate in the public tender, and the extent to which this can (and how it should) be documented. Logically, the same conditions need to justify a decision not to tender at all. If an undertaking is justified in not tendering (i.e., that is considered as the economically rational strategy), then it should also be justified in seeking collaboration. As mentioned below, this relates to an implicit duty to tender or else have a good rational for the tender hold-up, which seems more adequate for analysis under Article 102 TFEU than under Article 101(1) TFEU. In any case, difficult issues arise around any expectation or duty to participate in public tenders and the undertakings’ freedom to conduct a business under Art 16 of the EU Charter of Fundamental Rights, so careful consideration is necessary.

Second, the guidelines could be clearer in terms of the place for the establishment of counterfactual assessments. It seems that the guidelines do not consider the possibility of establishing an undertaking’s condition of potential competitor for a contract on the basis that it could have jointly tendered with undertaking(s) other than the one(s) it is eventually collaborating with. Such a possibility is only mentioned in relation with the assessment of the indispensability of an existing joint tendering agreement, where the draft guidelines indicate that, for an anticompetitive joint tender between (potential) competitors to be justified under Article 101(3) TFEU, “[t]here shall be no other economically viable and less restricting ways of achieving the efficiencies. This can be either in the form of bidding instead individually or forming a consortium with undertakings other than the ones in the current consortium” (p. 29, para 3.1.3, footnote omitted and emphasis added).

The fact that the existence of potential alternatives for collaboration is not use both to establish potential competition and the existence of potentially less restrictive forms of competition (ie, that it is not used both under an assessment of the Art 101(1) prohibition and the Art 101(3) exemption) should be welcome.

However, in my view, its use for the purposes of Art 101(3) is problematic. Once an undertaking has expressed its preference in collaborating with given consortium partner(s), it is difficult to accept the Authority’s role in second-guessing that an alternative collaboration would have been preferable (not only in competition terms, but also in business terms). The analysis of Art 101(3) TFEU should not involve this type of speculation, and it should suffice to establish that the joint bidders have not exceeded the limits required for the generation of the efficiencies derived from their agreement.

The possibility of having partnered with other undertakings seems to belong to the same logical plane as the decision not to partner with anyone (ie bid solo), or whether to tender at all. This is indicated in the draft guidelines itself themselves (see quote above), by linking the assessment of the undertaking’s ability to tender individually or to partner with other undertakings to do so. Those two decisions are equivalent in terms of establishing the undertaking’s condition of potential competitor for the contract, but they are not equally suitable for an assessment of whether less restrictive means existed, for the following reasons.

Where two potential competitors team up, then it can be argued that none of the restrictions was necessary at all and thus the assessment under Article 101(3) TFEU must fail. Conversely, where the agreement is between undertakings that would not have been potential competitors by themselves, the fact that a theoretically superior joint bidding arrangement could be conceived is irrelevant because the analysis under Article 101(3) TFEU must be limited to whether the arrangement in place generates efficiencies by the least restrictive means concerning the undertakings involved in the consortium. Considerations concerning third parties should be limited to an assessment of the fourth condition, concerning the consortium’s ability to eliminate competition for the contract—or, eventually, issues concerning infringements of Article 102 TFEU by the tenderer that could have participated solo and rather decided to ‘grab’ a partner that could have been strategic for a third party.

Therefore, it would seem more appropriate to move the assessment of the counterfactual consisting in the potential teaming with third party undertakings to the analysis of Art 101(1) TFEU with the sole purpose of establishing whether the joint tendering agreement is anticompetitive to begin with. In that setting, the circumstances in which a theoretically potential collaboration that is foregone is anticompetitive should also be clarified (as mentioned above) and, in my view, the clarification should be that such theoretical third arrangement is irrelevant.

Overall, taken together, these two issues point towards the need for more clarity in the guidelines concerning the assessment of situations where an undertaking is considered a potential competitor for a given public contract because it could have tendered for it (either individually, or in collaboration with third parties) but rather decides to team up with another potential competitor. As mentioned above, this seems to fit the framework of the rules applicable to a tender hold-up, which could be functionally assimilated to refusals to deal. In my view, developing the draft guidelines along these lines would improve them.

2. Treatment of risk-driven collaborations

The second main area where the draft guidelines could benefit from some clarification concerns the treatment of risk assessments carried out by undertakings considering the possibility to tender for a contract (either at all, or as part of a given consortium).

The first issue concerning risk-assessments that could be clarified is the extent to which they will actually be taken into account by the Authority. It seems contradictory or, at least confusing, that the draft guidelines indicate that “risk spreading is an element of the overall assessment of whether an undertaking can complete a contract on its own or whether it is objectively necessary to work with one or more undertakings” (p. 10, para 2.2) and at the same time that “[i]t will be difficult for a competition authority to make an ex post objective assessment of the risk taking on a contract … In this context, the issue of risk spreading will not necessarily be considered as an element when the Danish Competition and Consumer Authority assesses an undertaking’s capacity” (p. 11, same para). I find this difficult to understand and can see how the undertakings to which the draft guidelines are addressed may be confused. More clarity on the conditions in which the Authority will use or not internal documentation concerning risk-assessments would be desirable.

A second issue concerns the extent to which simultaneous tendering for different public contracts and their impact on the undertaking’s productive capacity features in the analysis. The draft guidelines usefully include a section on the analysis of the undertaking’s available capacity to undertake a contract and they recognise that, in some circumstances, foreseeable (recurring) commitments can be taken into account to establish that an undertaking does not have sufficient capacity to individually participate in a tender (pp. 14-15, para 2.2.4).

However, the guidelines do not seem to take into due consideration that undertakings active in procurement markets may (regularly) be tendering simultaneously for various contracts, which prospects of award are difficult to establish. In these cases, it is possible that a prudent business strategy requires the reservation of certain capacity in case the undertaking is successful in all of the simultaneous tenders (and this includes tenders which process of evaluation is live at the time of preparing the next tender), or at least a mitigation of that risk via cooperation with third parties (either by forming consortia, or through subcontracting).

Given the relevance (and, I would say, practical prevalence) of this circumstance, it would be desirable that the guidelines addressed it explicitly. Not only due to its impact on the assessment of the condition of potential competitor for a contract under Article 101(1) TFEU, but also due to the relevance that the draft guidelines give to this issue in terms of exemption under Article 101(3) TFEU (p. 26, para 3.1.1.1). In that regard, the guidelines indicate that “[i]n many cases, the risk of taking on a specific contract cannot in itself justify that companies shall not be considered competitors with regards to the contract. In such cases, risk considerations will only determine that the agreement is lawful under the competition rules if risk diversification leads to or contributes to companies submitting a better bid together than they would have been able to individually”. However, it could be that sometimes a joint bid is the only bid that potential competitors are willing to consider because their second best option is not a solo tender, but rather to withhold a tender for a contract that, if awarded, could tip them over their maximum capacity. In my view, more nuance could be introduced in relation with this aspect.

A third issue concerning risk assessment relates to the relevance given in the draft guidelines to the consortium’s expectation of competition for the contract. It is not clear to me why it would be relevant or adequate to consider that “[i]f a consortium that (sic) for instance participates in a public call for tenders where there are many participants and therefore there is effective competition for the contract, there will be greater likelihood that efficiencies are passed on to consumers in terms of lower offer price than if the consortium expects for example only another participant in the call for tenders” (p. 28, para 3.1.2). I find this inconsistent with economic theory. What is important to test the consortium’s incentives to tender aggressively (or the constraints to a limit pricing strategy) is whether they anticipate any (including only one) tender by an equally or more efficient tenderer. And, in any case, I struggle to envisage a legal test that could determine the extent to which the consortium was anticipating more or less competition for the contract. In that regard, I think that this element of risk management / strategic bidding should be clarified in the final version of the guidelines.

3. Spillover effects on exchanges of information

Given the issues surrounding the assessment of risk and the uncertainties concerning the effectiveness of using risk assessments to exclude the consideration of potential competitors of the consortium members or the existence of acceptable efficiencies in their joint tendering, the way in which the illegality of information exchanges is presented could constitute a significant disincentive for undertakings considering joint participation in public tenders.

In particular, the dissuasive effect can derive from the drafting of the paragraph that indicates that “[i]f it turns out that the undertakings that have considered entering into a consortium will themselves be able to bid for the contract and, thus, they are competitors, the information exchange that has taken place, will in fact constitute information exchange between competitors. This will be a criminal offence if the information is sensitive from a competition perspective. It is therefore important that each undertaking clarifies beforehand whether it can complete the contract individually and thus whether the undertakings are competitors” (p. 31, para 4.1, emphasis added).

It is possible that this dissuasion is mitigated by introducing more clarity concerning aspects of risk assessment identified above, in particular concerning the possibility of having teamed up with third parties and the assessment of potential capacity constraints. Otherwise, it could be advisable to provide more detail of the circumstances in which such exchange of information could lead to a prosecution.

In that regard, it would also be necessary to avoid statements that could be potentially misleading. In particular, in my view, it would be necessary to reconsider the indication that seeking legal advice could reduce the likelihood of an investigation or prosecution, not least because that could potentially run contrary to the interpretation of Article 101 TFEU by the Court of Justice of the European Union in its Schenker Judgment,[4] where it clearly indicated that “legal advice given by a lawyer cannot, in any event, form the basis of a legitimate expectation on the part of an undertaking that its conduct does not infringe Article 101 TFEU or will not give rise to the imposition of a fine”.[5]

_______________________

[1] For discussion, see here and A Sanchez-Graells, “Ski Taxi: Joint Bidding in Procurement as Price-Fixing?” (2017) 8(6) Journal of European Competition Law & Practice, forthcoming, available at https://academic.oup.com/jeclap/article-lookup/doi/10.1093/jeclap/lpx043, last accessed 07/07/2017.

[2] This is, in my view, the right general approach. See A Sanchez-Graells, Public procurement and the EU competition rules, 2nd edn (Oxford, Hart, 2015) 336-340.

[3] E.g. see here, here, C Thomas, “Two Bids or not to Bid? An Exploration of the Legality of Joint Bidding and Subcontracting Under EU Competition Law” (2015) 6(9) Journal of European Competition Law & Practice 629-638; C Ritter, Joint Tendering Under EU Competition Law (February 1, 2017), available at https://ssrn.com/abstract=2909572, last accessed 07/07/2017; and most recently, and with a consolidation of all previous debates, I Herrera Anchustegui, “Joint Bidding and Object Restrictions of Competition: The EFTA Court’s Take in the ‘Taxi Case’” (2017) European Competition & Regulatory Law Review (CoRe) 174-179, available at https://ssrn.com/abstract=2966374, last accessed 07/07/2017.

[4] Judgment of 18 June 2013 in Schenker & Co. and Others, C-681/11, EU:C:2013:404.

[5] Idem, para 41.

Comments on draft Catalan regional law on public procurement

I had the honour of being invited by the Catalan Parliament's Commission on Economy and Public Finances to submit comments to the draft Catalan regional law on urgent public procurement measures. These may be of limited interest and are written in Catalan (so not very accessible), but I thought I would post them here anyway. The full text of the draft law to which the comments refer is accessible here.

A LA MESA DE LA COMISSIÓ D’ECONOMIA I HISENDA

 APORTACIONS PER ESCRIT EN RELACIÓ AL PROJECTE DE LLEI DE
MESURES URGENTS EN MATÈRIA DE CONTRACTACIÓ PÚBLICA (tram. 200-00009/11)

Distingits membres de la Comissió d’Economia i Hisenda del Parlament de Catalunya,

Els agraeixo l’oportunitat de presentar observacions en relació al projecte de llei de mesures urgents en matèria de contractació pública.

Com a nota preliminar, voldria aclarir que la perspectiva d’aquesta aportació és la del dret europeu de contractació pública i, per tant, la major part de les meves observacions tendeixen a analitzar el contingut del projecte de llei amb l’objectiu d’assegurar el compliment de la normativa de la Unió. En concret les meves observacions es limiten a la compatibilitat amb la Directiva 2014/23/UE, de 26 de febrer de 2014, relativa a l’adjudicació dels contractes de concessió i amb la Directiva 2014/24/UE, de 26 de febrer de 2014, sobre contractació pública. Per tant, qüestions d’interacció entre el projecte de llei catalana i la futura llei estatal de contractes del sector públic – actualment en tramitació parlamentària al Congrés dels Diputats – queden al marge d’aquestes aportacions.

Addicionalment, cal tenir en compte que aquestes observacions no pretenen oferir una visió exhaustiva del projecte de llei, ans es limiten a aquelles qüestions problemàtiques on, en la meva opinió, aquesta Comissió hauria de plantejar-se la necessitat d’introduir canvis i esmenes al projecte de llei.

Sotmeto a la seva consideració les següents observacions:

01. Preàmbul

El preàmbul conté una afirmació incorrecta que cal aclarir, sobretot per la rellevància que es dona a aquesta afirmació en termes de la necessitat d’aprovar una llei de mesures urgents. En concret, és incorrecte indicar que l’aprovació de la Directiva 2014/24/UE ha produït una “reducció dels supòsits en què es pot utilitzar el procediment negociat sense publicitat que es deriva de l’aplicació directa dels articles 26 i 32 de la Directiva 2014/24/UE i que, si bé d’una banda aporta més transparència als procediments de contractació, de l’altra obliga a recórrer a procediments més llargs i complexos amb un impacte substancial en la tramitació dels procediments de licitació que impedeix, en un termini relativament breu de temps, fer front a la contractació de serveis públics.”

En aquest sentit, cal tenir en compte que el contingut material de l’article 31 de l’anterior Directiva 2004/18/CE, regulador dels supòsits en què és legítim recórrer a l’adjudicació directa de contractes, s’ha traslladat íntegrament a la Directiva 2014/24/EU, però no únicament als articles 26 i 32, sinó també a l’article 72, en relació a l’adjudicació directa de contractes per entregues addicionals. Més clarament, el supòsit de l’antic article 31(4)(a) de la Directiva 2004/18/EC (entregues addicionals resultants de necessitats imprevisibles de l’administració, fins a un 50% del valor original del contracte) té correlació directa amb el supòsit del nou article 72(1)(b) de la Directiva 2014/24/UE (que només ha alterat la redacció de les condicions aplicables a aquest supòsit). Per tant, les consideracions basades en el caràcter aparentment més restrictiu de la nova normativa de la Unió no estan justificades per un canvi real de dret substantiu i, en la meva opinió, això s’ha de reflectir adequadament en el preàmbul del projecte de llei.

02. Article 3. Càlcul del valor estimat de les concessions

La metodologia de càlcul del valor estimat de les concessions i, en concret, la regla general de l’article 3.1 del projecte de llei es desvia de la regla prevista per l’article 8(2) de la Directiva 2014/23/UE. Aquesta darrera norma preveu que el valor d’un futur contracte de concessió serà equivalent al volum de negoci estimat de la futura empresa concessionària durant la durada total del contracte, excloent-ne exclusivament l’IVA. En canvi, l’article 3.1 del projecte de llei preveu la possibilitat d’excloure, no només l’IVA, sinó també “qualsevol altre tribut que fos d’aplicació”. Aquesta desviació respecte la norma europea és molt rellevant, sobretot si dona peu a interpretacions encaminades a permetre l’exclusió de l’impost de societats, però també en el supòsit de descomptar altres impostos, com ara els relacionats amb la propietat d’immobles, o altres tributs locals, directes o indirectes. Per tant, l’article 3.1 s’ha de modificar per suprimir aquest esment final, de manera que indiqui que “... el valor estimat del contracte es calcula en base al volum de negoci estimat de la futura empresa concessionària, com a conseqüència de l’adjudicació de la concessió, excloent-ne l’IVA”.

De manera similar, l’article 3.2 del projecte de llei es desvia de la regla prevista per l’article 8(3) de la Directiva 2014/23/UE, ja que la llista de criteris que, com a mínim, s’han de tenir en compte per determinar el valor estimat de les concessions es incomplerta. Per tant, l’Article 3.2 del projecte de llei s’ha de modificar, de manera que estableixi que:

“... ha de tenir en compte, com a mínim:

 – El valor de les possibles modificacions i les pròrrogues.

– Les rendes procedents de l’abonament de les tarifes i qualssevol multes per part dels usuaris, quan no siguin tarifes, taxes o preus públics recaptats a compte i per ingressar a l’òrgan contractant.

– Els pagaments, subvencions o avantatges financers que s’abonin a l’empresa concessionària, per part de l’òrgan de contractació, de qualsevol altra administració o ens públics, o de tercers, derivats de la concessió, incloent-hi qualsevol compensació pel compliment d’obligacions de servei públic i subvencions a la inversió pública.

– Les rendes derivades de la venda o arrendament de qualsevol bé o actiu que formi part de la concessió.

– El valor de tots els béns, subministraments i serveis que l’òrgan de contractació posi a disposició de l’empresa concessionària, sempre que siguin necessaris per a la prestació del servei o l’execució de les obres.

– Les primes o pagaments als candidats o empreses licitadores.”

03. Article 4. Documentació acreditativa del compliment de requisits de capacitat i solvència

Convindria completar la regulació d’aquest article en dos sentits. D’una banda, a efectes de garantir el compliment de la obligació creada per l’article 59(4) segon paràgraf de la Directiva 2014/24/UE, cal aclarir de manera expressa l’obligació dels òrgans de contractació de demanar, abans de l’adjudicació del contracte, que la empresa seleccionada com a futura contractista presenti documentació actualitzada que demostri la veracitat i correcció del contingut de la declaració responsable. D’altra banda, convé establir un període adequat per a la presentació d’aquesta documentació, així com les conseqüències derivades de la falta de presentació, que haurien d’assegurar la desqualificació de l’empresa afectada i l’adjudicació del contracte a la següent empresa en ordre de valoració de les ofertes rebudes.

04. Article 6. Valoració de les proposicions

En relació a l’article 6.2 del projecte de llei, cal prendre en consideració que els criteris que s’indiquen per a la valoració del cicle de vida no són suficients per donar efectivitat a la possibilitat prevista per l’article 68 de la Directiva 2014/24/UE. En el seu cas, conforme a l’article 68(2) d’aquesta norma, la valoració del cicle de vida s’ha de dur a terme conforme a una metodologia pre-establerta que ha de complir totes i cadascuna de les següents condicions:

(A) Es basa en criteris objectivament verificables i no discriminatoris. En particular, quan no s'hagi establert per a una aplicació repetida o contínua, no ha d'afavorir o desavantatjar indegudament qualsevol operador econòmic;

(B) És accessible a totes les parts interessades;

(C) Les dades requerides per a l’aplicació de la metodologia es poden proporcionar amb un esforç raonable per part d'operadors econòmics normalment diligents, inclosos els operadors econòmics de països tercers que formen part de l’acord de l’Organització Mundial del Comerç sobre Contractació Pública Governamental o altres acords internacionals pels quals la Unió Europea estigui vinculada.

Com a mínim, això s’hauria d’incloure expressament en un nou apartat de l’article 6 del projecte de llei.

05. Article 8. Mesures de gestió eficient en la tramitació

Hi ha tres qüestions específiques del règim de gestió eficient que poden esdevenir problemàtiques.

D’una banda, en relació a l’apartat d), és difícil preveure que el requisit d’inscripció obligatòria no limiti la concurrència. Per tant, no sembla adient que es creï la possibilitat d’exigir aquesta inscripció amb caràcter absolut. Convé tenir en compte que, tot i que aquest règim sigui aplicable a contractes de valor inferior als llindars comunitaris, si un contracte té interès comunitari el requisit d’inscripció obligatòria pot resultar contrari al dret europeu. Per tant, proposo que es consideri la supressió d’aquest apartat.

D’altra banda, convé tenir en compte que la revelació excessiva d’informació pot afavorir la col·lusió entre empreses competidores per contractes públics. Per tant, en línia amb allò previst per l’article 55(3) de la Directiva 2014/24/UE, és adient incloure a continuació del tercer paràgraf de l’apartat f) que:

“Durant la fase pública i, en general, en relació amb tota la informació inclosa a l’expedient, la mesa de contractació i altres departaments de l’òrgan de contractació han de garantir la protecció d’informació confidencial i assegurar que no es revela informació que pugui impedir l'aplicació de la llei o la revelació de la qual, de qualsevol altra manera, sigui contrària a l'interès públic, perjudiqui els interessos comercials legítims d'un operador econòmic en particular, ja sigui públic o privat, o pugui afectar la competència efectiva entre operadors econòmics.”

Finalment, en relació amb l’apartat i), convé considerar l’oportunitat de preveure expressament que qualsevol queixa contra la decisió d’adjudicació que s’interposi durant el període de 5 dies suspendrà la possibilitat de formalitzar el contracte en tant no s’hagi resolt la disputa.

06. Article 9. Causes de modificació dels contractes

Aquest article crea un règim excessivament simplificat en relació a l’article 72 de la Directiva 2014/24/UE. Es tracta d’un article que introdueix desviacions rellevants respecte al règim comunitari i que, a la vegada, crea confusió a causa de l’apartat 3, que fa una referència total al règim del dret de la Unió. Convindria un replantejament complet d’aquest article i seria recomanable transposar, sense canvis, el text literal de l’article 72 de la Directiva 2014/24/EU. En defecte d’aquesta solució, com a mínim s’haurien de fer els següents canvis:

a)   L’article 9.1 s’ha de modificar per garantir la seva compatibilitat amb l’article 72(1)(b) de la Directiva 2014/24/EU, per tal que estableixi que “Els contractes es podran modificar quan sigui necessari perquè calgui realitzar prestacions addicionals que hagin esdevingut necessàries, no estiguin previstes en el contracte original i que únicament pugui portar a terme el contractista original per raons econòmiques o tècniques, o perquè una nova adjudicació pugui generar inconvenients significatius, com ara requisits d'intercanviabilitat o interoperabilitat amb equips, serveis o instal·lacions existents obtingudes en virtut de la contractació inicial, o un augment substancial de costos per a l’Administració. En qualsevol cas, el límit màxim global d’una modificació per aquesta causa serà del 50% del valor inicial del contracte. Quan es facin diverses modificacions successives, aquesta limitació s'aplicarà al valor de cada modificació.”

b)   L’article 9.2 s’ha de modificar per garantir la seva compatibilitat amb l’article 72(1)(a) i (d) de la Directiva 2014/24/EU, que no preveu la possibilitat de modificar el contracte només pel fet de que es produeixi una cessió. Per tant, cal canviar el tenor literal de l’article per tal que indiqui que: “La successió en la persona del contractista per fusió, absorció, escissió, aportació o transmissió d’empresa o branca d’activitat, així com la revisió de preus en cas que, en aquest darrer supòsit, s’admetin en els plecs, s’hauran de tramitar com a modificació de contracte.”

07. Disposicions addicionals

Tinc dubtes de compatibilitat amb el dret europeu de la regulació de les “formules no contractuals de gestió de serveis socials” prevista en les disposicions addicionals. Els dubtes principals estan en relació amb (i) l’assumpció que aquestes “fórmules no contractuals” no són contractes públics a efectes de la normativa de la Unió, (ii) la preferència que es pretén crear per a entitats sense ànim de lucre, i (iii) la delegació reglamentària de la vigència màxima d’aquestes fórmules. Les principals raons pels meus dubtes són les següents:

(i)      L’estructura d’aquest sistema d’autorització + concert correspon, a efectes de la definició de contractació pública prevista per l’article 1(2) de la Directiva 2014/24/UE, a una fórmula contractual que, per tant, s’ha de regir per la totalitat d’aquestes normes (com indico després). La jurisprudència del Tribunal de Justícia ja s’ha ocupat de la interpretació d’aquest concepte de contractació pública (‘procurement’) en la Sentència de 2 de juny de 2016 en el cas Falk Pharma, C-410/14, EU:C:2016:399. Allí el Tribunal va establir que llevat dels casos on la selecció del proveïdor no depengui de l’elecció de l’administració pública, aquesta mena de sistemes de conveni s’han de sotmetre a la normativa de la Directiva 2014/24/UE. Per tant, llevat que els pacients i beneficiaris dels serveis tinguin una llibertat total per a l’elecció del proveïdor de serveis, no és possible considerar el sistema creat per les disposicions addicionals com a “fórmules no contractuals” a efectes de compliment amb la normativa de la Unió.

(ii)    La creació de preferències per l’adjudicació de contractes públics a entitats sense ànim de lucre és, en general, contrària al dret de la Unió. Així ho va establir el Tribunal de Justícia a la Sentència d’11 de desembre de 2014 al cas Azienda sanitaria locale n. 5 «Spezzino» and Others, C-113/13, EU:C:2014:2440, on només va admetre la creació d’aquesta mena de preferències quan el marc constitucional de l’Estat membre en qüestió així ho permeti (com era el cas d’Itàlia). En la meva opinió, la Constitució espanyola de 1978 no ofereix aquesta possibilitat i, per tant, la creació d’una tal preferència vulnera el dret comunitari.

(iii)   La durada màxima dels contractes ha d’ésser establerta a nivell de llei. Addicionalment, ja que el sistema previst és, com a mínim, funcionalment equivalent als acords marcs de l’article 33 de la Directiva 2014/24/EU, la seva durada màxima no pot excedir els quatre anys.

Amb caràcter més general, em sembla que el projecte de llei no pren en consideració les particularitats de règim jurídic que els articles 74 a 77 de la Directiva 2014/24/UE estableixen per a aquesta mena de serveis socials i especials, que permetrien la creació d’un sistema de reserva de contractes de durada màxima de tres anys per a entitats sense ànim de lucre. En definitiva, em sembla que els objectius de política social implícits en el sistema previst a les disposicions addicionals es pot fer compatible amb el dret de la Unió, però no de la forma establerta. Si fos d’interès per a aquesta Comissió, i amb temps i finançament adequats, podria contribuir amb una contra-proposta detallada.

Agraint-los novament l’oportunitat de presentar aquestes consideracions, quedo a la seva disposició.

3 de juliol de 2017

 

Interesting AG Opinion on treatment of on-going criminal cases & self-cleaning under 2004 rules (C-178/16)

In his Opinion of 21 June 2017 in Impresa di Costruzioni Ing. E. Mantovani and Guerrato, C-178/16, EU:C:2017:487 (not available in English), Advocate General Campos Sanchez-Bordona analysed an Italian case concerning the interaction between mandatory and discretionary exclusion grounds related to an undertakings' director's criminal record, as well as the self-cleaning measures adopted by the undertaking as it aimed to carry on participating in tenders for public contracts. The case requires the interpretation of the 2004 EU public procurement rules, but its rationale will be relevant in the future interpretation of Art 57 of Directive 2014/24.

In the case at hand, a former director (Mr B) of a tenderer (Mantovani) was under criminal investigation for having run a scheme of fraudulent invoices, and it was publicly known (vox populi) that he had entered into a plea bargain deal. When Mantovani submitted a tender for the construction of a new prison in Bolzano (the irony is inescapable...), and as part of the documentation aimed at demonstrating its good personal and professional standing, it submitted a self-certification indicating that Mr B had ceased his position as president of the board of directors 4 months prior to the start of the tender procedure and that, to the best of Mantovani's knowledge, no conviction by final judgment or plea bargain deal had been had been adopted.

Relying on the public information of which it was aware, the contracting authority requested a copy of Mr B's criminal record. It revealed that a sentence based on the plea bargain deal had become final after the submission of the self-certification by Mantovani (the sentence being adopted only the day after the submission of the first self-certification by Mantovani). The contracting authority decided to exclude Mantovani, which challenged this decision on the basis that: (a) the conviction had been published and become final after the submission of the self-certification, and (b) that it had taken remedial action to severe all ties with Mr B (including cessation of his directorship, restructuring of the board of directors, repurchase of Mr B's shares in Mantovani, and suing Mr B for director's liability).

Interestingly, the contracting authority asked for consultation to the Italian Anti-Corruption Agency (ANAC), which advised that, even if it could be found that Mantovani did not submit a false self-declaration (which onus probandi fell on the contracting authority), and in particular due to the (technical) fact that the conviction was not final at the time of the self-declaration, the contracting authority has a duty to assess the effectiveness of the self-cleaning measures and it is conceivable that Mantovani's integrity is compromised due to the fact that it had not taken positive steps to make the conviction know to the contracting authority once it became official and final. In ANAC's view, and according to Italian case law, failure to actively keep the contracting authority informed of developments in a criminal investigation (where there is an eventual conviction) reveals the absence of disengagement with the former director, and is thus a violation of the duty of loyal cooperation that can justify its exclusion from the procurement procedure.

The contracting authority decided to keep Mantovani's exclusion, and this was challenged. The assessment of the case is complicated by the peculiarities of the Italian rules (which triggered significant debate between the interveners before the ECJ, and which AG Campos rightly  considers the Court incompetent to rule on, see paras 37-38), as well as by the fact that the new rules on self-cleaning are not applicable ratione temporis, which creates some vacuum in the framework for the assessment of the contracting authority's exercise of discretion in this case. However, AG Campos' assessment of the case offers some interesting interpretive pointers. In my view, these are the relevant points of the Opinion:

  • The key issue concerns the contracting authority's decision to exclude Mantovani not directly on the basis of the criminal conviction of Mr B, but rather on Mantovani's own failure to keep the contracting authority informed once that conviction was official. This thus requires an assessment of compatibility with the ground of exclusion based on the existence of evidence that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable [Art 45(2)(d) Dir 2004/18 and now Art 57(4)(c) Dir 2014/24] (paras 42-46).
  • Member States have significant discretion to regulate the conditions applicable to discretionary exclusion grounds, and this is only limited by the impact that such grounds and their exercise can have on freedom of establishment and freedom to provide services. Such impact needs to be subjected to a balancing exercise vis-a-vis the public interest in the probity of the procurement process, under a proportionality assessment (paras 51-53).
  • Under that analytical framework, nothing prevents an extension to the economic operator of (some of) the consequences of the criminal behaviour of one of its former directors, and it is adequate to make the burden of proving effective disengagement and adoption of effective remedial measures (ie, self-cleaning) on the undertaking (paras 54-65).
  • It is adequate, and certainly not incompatible with EU law, to treat the economic operators' silence (or the omission of an implicit duty to keep the contracting authority informed based on a more general duty of loyal cooperation) as evidence of professional misconduct capable of justifying a decision to exclude it from the tender procedure. Where no documentary evidence exists that could allow for a pre-defined check of compliance with (or absence of) exclusion grounds -- notably, those concerning professional misconduct or failure to supply required/adequate/truthful information -- the contracting authority enjoys a broad degree of discretion to assess the circumstances and evidence potentially leading to an exclusion decision (paras 72-83).
  • Importantly, given that the exclusion of the economic operator is not automatic, but rather based on an ad casum assessment, and that such discretionary assessment is subjected to judicial review, this does not place the economic operator in a situation where it cannot defend its interests (para 84).

I think that AG Campos shows two interesting guiding principles that the ECJ should support in its Judgment in Impresa di Costruzioni Ing. E. Mantovani and Guerrato, as well as more generally in the future. First, that contracting authorities need to be given space to exercise discretion aimed at ensuring the probity of the procurement process. And, second and equally important, that the exercise of that discretion needs to be subjected to appropriate checks and balances, including an opportunity to challenge exclusion decisions under appropriate procedural guarantees.

In my view, this functional approach also stresses the need to create effective inter partes procedures for the economic operator and the contracting authority to exchange information prior to the exclusion decision being effective, as well as ensuring swift review of those decisions at a stage where they can still be undone (as the logic in Marina del Mediterraneo requires, see here). Thus, this supports, once more, the need to revise and reform the remedies directive, largely along the lines I drew in A Sanchez-Graells, "'If It Ain't Broke, Don't Fix It'? EU Requirements of Administrative Oversight and Judicial Protection for Public Contracts", in S Torricelli & F Folliot Lalliot (eds), Administrative Oversight and Judicial Protection for Public Contracts (Larcier, 2017, forthc)].

Anti-competitive, excessively broad, long-term service contracts as a substitute for legislated reform of the NHS in England? -- re manchester out of hospital care tender

In my previous post, I had tried to scope the potential impact of Brexit for NHS procurement in England. There, I stressed the peculiarities derived from the traditional purchaser-provider split that has characterised the activities of the English NHS since the 1990s. That split has evolved beyond a pure "public management" tool and, over the past 25 years or so, resulted in the emergence of mixed markets where public and private undertakings compete for the provision of certain services that are procured or commissioned by a different (buying) branch of the NHS. Those markets are controlled by competition and public procurement rules, which are in part of EU origin, and in part purely domestic instruments -- such as the Health and Social Care Act 2012 and the NHS (Procurement, Patient Choice & Competition) No 2 Regulations 2013.

I also stressed that this domestic policy aimed at creating an "NHS internal market" with clear elements of a mixed economy was (and is) not mandated by EU law. In my view, there is nothing in EU law that obliges member states to open up public healthcare services to competition (see Art 14 and Protocol (No 26) TFEU). EU law simply sets specific rules and constraints applicable to situations where member states independently decide to open up those markets to competition. My arguments for this are largely along the same lines of those maintained by Hervey & McHale (2015, see ch 9).

Therefore, if policy-makers identified the NHS purchaser-provider split as a problem for the introduction of reforms in the way NHS England operates, with or without Brexit, it would be possible to move back to a fully integrated public healthcare system without infringing EU law. Or, in other words, there is no reason why policy reform aimed at undoing the purchaser-provider split in the English NHS could not fit within the blueprint of EU law. 

However, the way in which such change of model can be legally delivered is not without constraints, both under UK and EU law. In my opinion, it is not possible for policy-makers to move away from the current "NHS internal market" without changing its basic regulatory framework (ie without legal reform), and decisions aimed at bringing the existing mixed markets under public control under an appearance of compliance with public procurement and competition law are highly problematic. An on-going project to alter the market for the provision of out of hospital care services in Manchester offers a clear example of this. Given that Manchester's is the first in a series of parallel on-going projects, this can well serve as a cautionary tale.

As part of the implementation of a sustainability and transformation plan (STP), Manchester authorities responsible for health and social care (including three Clinical Commissioning Groups, CCGs, and the Manchester City Council) tendered a contract for the creation of a ‘Local Care Organisation’ (LCO) for a range of out of hospital health and care services for Manchester. The LCO would aim to "deliver sustainable, high quality, safe and affordable prevention, primary, community, secondary health and social care services, through a blend of direct and sub-contracted provision." Furthermore, the contract notice also indicated that "Over time, some services currently provided in the acute sector may be transferred to the LCO; commissioning intentions may result in the transfer of some low acuity, non-surgical (or non-complex surgical) services, into the LCO from year 3 (2020/21) at the earliest, and possibly thereafter over the contract term." In short, this was a contract for the provision of virtually all health and social care services with the exception of in-hospital services. The tendered contract was for a duration of 10 years and an estimated value of £5.9 billion, and was designed as a single block, thus excluding the possibility of awarding it by lots. This was the biggest ever NHS tender at the time of being launched, but other similar contracts are already being sought by local NHS commissioners (see here).

It is worth stressing that the contract was advertised on 14 March 2017 and expressions of interest had to be submitted by 28 April 2017, which does not seem like a particularly long time frame, given the complexity and duration of the contract. The tender notice also explicitly indicated that "The contract will be awarded without further advertisement of this opportunity and there will be no further opportunity to express interest", which clearly created time pressure and possibly discouraged potentially interested tenderers that did not consider it possible to submit a competitive (or even a complete) qualification questionnaire within 6 weeks.

Unsurprisingly, it has now emerged that only one offer has been received fro this contract, and that this offer has been submitted by "the Manchester Provider Board, which is a consortium made up of Manchester City Council, local GP federations, the city's three acute trusts [ie hospitals], community service providers and the Greater Manchester Mental Health Trust". In my view, there are two plausible reasons for this less than competitive outcome: first, that the tendered contract exceeds the delivery capabilities of any given organisation (as demonstrated by the fact that the only offer comes from a collaborative effort that aggregates virtually the entirety of the public providers -- which probably also count on continued reliance on private providers); and, second, that the entities participating in the design of the Manchester STP had, at least, a clear time advantage to prepare their tender (if not also information not available to other potentially interested tenderers). On the whole, it seems that the advertising of the contract was never intended to create real competition, and is simply a formal step aimed at creating an appearance of legality of this strategy aimed at side-stepping the (NHS) market.

I am concerned about at least three dimensions or implications of the strategy followed in the (partial) delivery of the Manchester STP through the tendering of such excessively broad, long-term services contract in less than competitive conditions.

First, at the immediate level of the tender, I am concerned that its design is anti-competitive and potentially breaches the requirements of the principle of competition established in reg. 18(2) and (3) of the Public Contracts Regulations 2015 (in transposition of Art 18(1) Dir 2014/24, on which see here), which requires contracting entities not to artificially narrow competition, in particular by favouring or disadvantaging certain economic operators. Similar issues of interpretation of the requirement of effective competition in the tendering of procurement contracts in the health sector has arisen in other jurisdictions and, in the specific case of Finland, there is an important precedent against the creation of exceedingly large contracts leading to a single potential supplier (for discussion, see here). If I am right and there is a breach of this principle, the whole procurement process should be quashed (although it also seems clear that litigation is unlikely at this stage).

Second, and at a more general level, I think that the effort behind the STP is not merely aimed at streamlining the functioning of the existing NHS market for the provision of out of hospital health and social care services, but rather at setting aside that market altogether. Rather than simply searching for better service delivery through aggregation in the patients' interest (within the limits of the NHS (Procurement, Patient Choice & Competition) No 2 Regulations 2013 -- for discussion, see here), this aims to deliver a change of model for the management of the NHS (and ancillary social services) and clearly exceeds the policy-making space of the procurement regime. If this is the case, I do not think that this can be done through the procurement of a massive umbrella contract capable of eating up the NHS market (while also indicating that there is space for subcontracting and for the future placement of additional services under that umbrella). Legal reform is necessary, in particular to ensure full debate in Parliament of the move away from the purchaser-provider split, as well as the broader implications of the (apparent) project of de-marketisation of the NHS. This is necessary because a change of model is not without consequences, in particular if (foreign) investors in private health care providers raised claims against the UK Government for what could amount to an expropriation in terms of international investment law, as well as a potentially disproportionate (ex post) restriction of EU fundamental freedoms of establishment and movement.

Third, and looking at the future, I am concerned that the delivery of this macro umbrella contract will be highly challenging and difficult to achieve within the terms of the original contract (although I have not seen them). It seems clear that such a long-term and broad contractual object will require permanent adjustments and modifications, which may trigger litigation down the line. The fact that a single contract has such a large scope creates legal risks of its own, in particular if it was to be set aside or terminated in the future. I am sure that there will be contractual provisions aiming to minimise disruption in the provision of such crucial health and social care services should contract execution run into serious difficulties, but it is hard to see that all contingencies can be covered.

Overall, I do not think that EU law (or domestic law) opposes or prevents the end result that the Manchester (and other) STPs aims to achieve. However, they do oppose and raise significant issues in the way that this very fundamental change (ie reversion) of the NHS internal market model is being delivered. Before the Manchester strategy is rolled over or mimicked in other areas, I would suggest that a deeper rethinking and a commensurate reform of the applicable legal framework is necessary. It is clear that the Government is not in the best position to undertake such a large scale project in the context of the Brexit negotiations and the aftermath of the June General Election, but allowing for such reform to be carried out under the radar of Parliamentary scrutiny seems to me both politically wrong and legally risky.

 

Scoping the impact of Brexit for NHS procurement

NHS England spends over £20 billion every year on goods and services, which typically accounts for around 30% of the operating costs of each hospital. A significant part of the remainder of NHS non-salary budget involves the commissioning of health care services. This expenditure and commissioning is controlled by NHS procurement rules, which in part derive from EU law. Different procurement rules apply in different countries within the UK, and both Scotland and Northern Ireland both have separate regulatory schemes. Even though this post only focuses on the situation in England, some issues reflect broader concerns in the UK context. Generally, NHS procurement rules are regularly criticised for imposing excessive red tape and compliance costs on the NHS, and calls for NHS procurement reform to free it from such strictures are common.

In this context, Brexit could be seen as an opportunity to overhaul NHS procurement and to move away from the perceived excesses of EU law (see eg Cram: 2016). However, I think that it is far from clear that such reform could not fit within the blueprint of EU law, and that most of the constraints on NHS procurement rather derive from independent decisions adopted by the UK over the last 25 years. Moreover, from an economic perspective, Brexit will probably hurt the functioning of the NHS (including its procurement), with or without significant regulatory reforms.

This post is based on my presentation at the event Brexit, Regulation and Society, held by ManReg: The Manchester Centre for Regulation, Governance and Public Law (slides at the bottom of this post), and concentrates on two issues. First, does EU law prevent significant reforms of NHS procurement and, if so, can Brexit suppress such constraints? Second, is the way the Brexit process is unfolding conducive to an improvement of NHS procurement, both from an economic and a regulatory perspective?

Starting point, where were we before Brexit?

Since the 1990s, in England, the activities of the NHS have been characterised by a peculiar purchaser-provider split. Some branches of the NHS act as purchasers or commissioners of health care services (currently, clinical commissioning groups, or CCGs), while other branches of the NHS (trusts and foundation trusts) act as providers of health care services and compete with private providers in some markets. The activities of these entities are overseen by NHS Improvement as sector regulator.

The purchaser-provider split policy was introduced with the aim of creating an “NHS internal market” to generate competition-based incentives for the improvement of service delivery and cost management. However, the system has been permanently evolving (a ‘continuous revolution’, Maynard:2016), and this has both created increased scope for public-private competition (Odudu: 2012; Hunter: 2016), and notable difficulties in keeping pace with the successive waves of NHS procurement re-regulation.

Currently, NHS procurement is primarily covered by two sets of domestic rules (as well as a large volume of soft law). The core bodies of rules applicable to NHS procurement are:

Additionally, given the organisation of the system as a mixed market with public and private suppliers in different forms of competition for different services, NHS procurement is also subject to a host of EU and UK competition rules, such as:

  • The Competition Act 1998 and the Enterprise Act 2002 (as domestic statutes that replicate, to a large extent, substantive EU law prohibitions); and the
  • Treaty on the Functioning of the EU, including State aid rules – and in particular those for the financial support to the provision of Services of General Economic Interest.

On the whole, this results in a rather complex regulatory setting that is commonly criticised as imposing significant constraints on the way NHS procurement is carried out. However, it is important to stress that these constraints ultimately depend on the existence of the purchaser-provider split and the establishment of a mixed market for health care services—which are decisions independently made by successive UK governments rather than an EU imposition. There is nothing in EU law that obliges member states to open up public services to competition, and the UK could move back to a fully integrated public system without infringing EU law. In other words, EU law is not the cause of any shortcomings identified in the existing regulation of NHS procurement of health care services.

Could Brexit alter the situation?

Given the above, in regulatory terms, the short answer is that Brexit should mostly not have any meaningful effect on the regulation of NHS procurement. Significant reforms are possible under current EU law. They would however require political drive and changes in funding schemes. Indeed, already before the referendum, it was clearly stressed that “leaving the EU is an irrelevance when it comes to what many regard as the creeping marketisation of the NHS” (Hunter: 2016; and in similar terms, later reiterated by McKenna: 2016; Taylor: 2016).

Leaving the single market would not lift constraints on the reform of NHS procurement, or NHS governance more generally, but it could affect it in practical terms. Indeed, it was clear that Brexit could have negative operational impacts for NHS procurement. This would be the case both if: (1) the “NHS internal market” was kept, because exiting the EU’s single market could have negative impacts on private competition in health care provision, including in the market for health care insurance in the UK; or (2) if the “NHS internal market” was to be dismantled, since the acquisition of equipment and supplies from outside the UK would face barriers and additional costs (Hall: 2017), which can only be exacerbated by the negative impact of Brexit on the economy, both in terms of economic slowdown and inflation (which are now materialising; ONS: 2017).

NHS (procurement) in the Brexit and general election campaigns

NHS funding featured prominently in the political campaign leading to the Brexit vote. Most discussion concentrated on the level of funding for a cash-strapped NHS. However, the deeper impacts of Brexit on the NHS – in particular those of a hard Brexit that implied the UK’s exit from the EU’s single market and customs union – received much less attention (not least because leaving the single market was back then explicitly rejected as an option for the future).

Nonetheless, it was clear that any impact of Brexit on NHS procurement was compounded by the uncertainty surrounding the framework for UK-EU trade post-Brexit. This was not clarified during the Brexit campaign, and the following plans unveiled by the UK Government failed to provide any further specifics. Neither the Brexit White Paper nor the Great Repeal White Paper reduced such uncertainty. The Brexit White Paper simply stated that the Government’s intention is to “not be seeking membership of the Single Market, but … pursue instead a new strategic partnership with the EU, including an ambitious and comprehensive Free Trade Agreement and a new customs agreement.” The Great Repeal White Paper only included one mention of procurement as an example of a ‘negative procedure’ for the adjustment of EU-derived law post-Brexit.

This situation continued during the recent electoral campaign, where issues around NHS funding were more prominent than issues surrounding reform of the NHS system, including NHS procurement. However, there seemed to be some commonality to the long-term strategic goals of both main political parties around a correction (to different degrees) of the current market-based purchaser-provider split system. Both the Conservative and the Labour manifestos pledged more funding for the NHS. Both alluded to a change of system.

Labour promised to “reverse privatisation of our NHS and return our health service into expert public control [including the] repeal [of] the Health and Social Care Act  … and [making] the NHS the preferred provider”. The contours of this proposal are rather vague. However, in terms of NHS regulation, this would seem to suppress public-private competition for the provision of health services (possibly excluding the application of competition law) and the NHS procurement regime, by mandating provision of services by the NHS (at least as preferred provider).

The Tories indicated that they would “consult and make the necessary legislative changes. This includes the NHS’s own internal market, which can fail to act in the interests of patients and creates costly bureaucracy. So we will review [its] operation … and, in time for … the 2018 financial year, we will make non-legislative changes to remove barriers to the integration of care”. This seems even less clear, but could imply a simple reform of NHS procurement policy with the aim of maximising the effectiveness of the concept of ‘patient interest’ under the NHS Regulations (No 2) 2013.

Interestingly, both changes to the purchaser-provider split seem possible within the constraints of the existing EU regulatory framework, and they seem to require political choices unaffected by Brexit – with the obvious exception of funding, which is directly (and negatively) affected.

Brexit … one year on – What now?

Almost a year after the UK’s vote to leave the EU, and after the surprising result of the General Election, the only thing that can be said with a minimum of confidence about the impact of Brexit on NHS procurement is that uncertainty prevails (similarly, Simpkin & Mossialos: 2017), and the economic impacts are probably going to be both negative and severe. This seems to run in the opposite direction of the aims (and promises) of those supporting Brexit.

The situation may have been worsened as a result of the General Election, as the Tory government is seeking to reach an agreement with the DUP for support of a minority Conservative government. Either way, this seems likely to require concessions in terms of funding for public services in Northern Ireland, which could impact plans to boost investment in the NHS in England. However, there is no clear indication that other reforms of NHS procurement should necessarily be altered. The question thus remains: Will NHS procurement be reformed along the lines of the Conservative manifesto and, if so, what will that entail?

On-going reforms and uncertainties

Assuming continuity of recent policy developments, it is worth stressing that, since the adoption of the Five Years Forward View for the NHS in England in 2014, the system has been progressively reoriented. Current reforms are geared towards experimentation with the so-called sustainability and transformation plans (STPs), which aim to suppress the purchaser-provider split, including through the creation of accountable care organisations (ACOs). Recently, Stevens (CEO NHS England) clearly indicated this goal by stressing that STPs “will for the first time since 1990 effectively end the purchaser-provider split, bringing about integrated funding and delivery for a given geographical population”. The strategy is still not clearly spelled out and there are open questions concerning its feasibility and/or desirability (Hare:2017).

However, even if this strategy was completely carried out, it seems unlikely that the NHS would not have to comply with procurement rules at all. While a suppression of the purchaser-provider split would potentially allow for a derogation from the NHS Regulations (No 2) 2013, the NHS would still need to buy a number of goods and services from the market. Thus, the reforms to NHS procurement refer to the suppression of a layer of complication and constraints in NHS governance (that derived from the purchaser-provider split), but not a complete shielding of the NHS from procurement and competition rules.

These would remain particularly relevant in terms of new investments in physical and IT architecture for the NHS, which have been pledged by the Conservatives (and by Labour). Expenditure of NHS funds would remain subject to the strictures of the Public Contracts Regulations 2015, which could only be reformed or derogated post-Brexit in the absence of a UK-EU free trade agreement covering procurement.

Overall assessment

In view of all this, I would reach two conclusions. First, that the discussion surrounding the regulation of NHS procurement needs to concentrate on the fundamentals of the potential alternative models: ie a system of integrated NHS governance subject only to public law checks and balances, vs a mixed market system for the provision of health care services for the purposes of the NHS (including some form of purchaser-provider split) subject (also) to market regulation. Most of the pre-Brexit and current discussion conflates elements of both models without acknowledging that both fit within the EU regulatory framework and, consequently, decisions on the model that should be adopted (and the regulatory implications that follow) exclusively depend on UK political decisions.

Second, that the broader economic context in which NHS procurement takes place has a deep influence on the ability of the NHS procurement function to support the provision of high quality health care services. From that perspective, the deterioration of the economic climate created by Brexit and the uncertainty surrounding the future UK-EU trading framework are damaging NHS procurement as much as they are damaging the UK’s economy and public sector more generally. In this context, whichever reforms of the NHS model that may follow from the above will be negatively affected by Brexit. In these circumstances, I find limited space for hope for an improvement in the functioning of the NHS, including its procurement function, at least in the medium term.

Interesting Opinion on duty of EU constitutional courts to refer questions for preliminary ruling to ECJ (C-322/16)

In his Opinion of 8 June 2016 in Global Starnet, C-322/16, EU:C:2017:442, AG Wahl has addressed the extent to which "the fact that a constitutional court of a Member State has declared a national measure compatible with the constitution has any bearing on the obligation, imposed on national courts of last instance under Article 267 TFEU, to refer a question concerning the interpretation of EU law to the Court, when the national rules forming the basis of the constitutional court’s assessment are similar to the relevant EU rules."

AG Wahl's answer to that question is negative, and for very clear reasons, which I consider fully adequate. I recommend reading paras 13-23 of his Opinion, which provide a concise and useful summary of the ECJ's case law on the scope and limits of the obligations imposed by Art 267 TFEU on the highest domestic courts of the Member States.

Some thoughts on procurement flexibility and accountability after the 2014 EU Public Procurement Package & recent trends in case law

I had the honour of being invited to deliver a keynote presentation at the annual conference on procurement organised by FCG in Helsinki on 2 June. The organisers invited me to address two topics: first, an overview of the 2014 reform of EU public procurement rules from the perspective of flexibility, discretion and checks and balances. Second, a more focused discussion of recent ECJ case law in three areas of relevance for the Finnish practice after the transposition of the EU rules: the exemption for in-house provision and public-public cooperation, the requirements derived from general principles of procurement law, and the rules on discretionary exclusion and self-cleaning.

These are the two sets of presentations I used, which I hope reflect some of the ideas I presented, and which gave rise to very stimulating debate.

Some thoughts on the transposition of the concessions directive after a comparative conference in Brescia

On 31 May and 1 June 2017, I had the pleasure of attending a conference on the transposition of the concessions directive (Dir 2014/23) organised at the Law Faculty of the University of Brescia. The discussions formally covered the transposition in Belgium, Spain, the UK, the Netherlands and Italy, and colleagues from other jurisdictions provided additional views from Denmark, Romania and beyond. After two days of debates and rather detailed discussions (and amazing food, wine and weather, all be said), I have jotted down some rough thoughts on the issues and challenges resulting from the initial transposition efforts in these jurisdictions—which may result in litigation and case law in the future. All views are my own and any misunderstandings of the rules in any of these jurisdictions are solely mine, and are probably influenced by my previous views on the concessions directive (see here and here).

Conceptual / Scoping Issues

01. The word concession remains a dangerous misnomer in countries with a tradition of using this label for extractive concessions (coal, gas, etc), domain concessions (ie authorisations to use public spaces or infrastructure) or for activity concessions (rectius, authorisations or permits), which sometimes have experienced an independent legislative evolution in parallel (or even rather separately) from the discipline of public contracts. This creates some interesting (and difficult) trends of resistance and influence (or deformation) in the transposition of the concessions directive, as well as continuing (perceived) lack of clarity in the contours of the concept of concession.

02. It seems that there could have been an alternative approach had the EU decided to use a different (new) term without historical connotations or domestic implications for the purposes of establishing the scope of the rules, and thus allowed Member States to choose their nomenclature / domestic legal institution that better matched the EU definition / concept. Given that this was not the case, at the current juncture, it seems that a further development at EU level of the concept of authorisation/licence, and a more consistent and technically accurate use of the (EU) terms concession and authorisation/licence at domestic level could be a solution for the future—although this can have an impact on the (previously) homonymous domestic institutions and could continue to create some irritation (in the sense of the comparative law literature on legal transplants).

03. The controversy surrounding the legal nature of concessions as either public contracts, special (private) contracts or a tertium genus also remains on the table. This does not seem clearly conducive to functional regulation, in particular in terms of post-award remedies. Similarly, some jurisdictions (such as Spain) establish special rules for concessions involving the provision of services directly to the end user / citizen, which also introduces conceptual difficulties by establishing different types of service concessions on the basis of non-EU criteria. The extent to which this is in line with the need to keep homogeneous concepts in the transposition of the concessions directive remains an open question.

04. Other issues around the concept of concession (proper), and notably the issue of the transfer of significant operating risk so as to expose the concessionaire to the vagaries of the market, are creating quite some puzzling analyses in some jurisdictions, at least in academic circles. It seems that there are difficulties in integrating an economic/financial understanding of risk with more traditional categories of risk as understood by lawyers (sometimes taken as almost a synonym of liability) and related to the position of the concessionaire as an agent, delegate or substitute of the public administration, as well as to the transfer or not of public powers as part of the concession relationship.

05. The requirement for risk transfer is sometimes presented as an implicit condition for the public administration’s decision to stop directly exercising public powers and rather resort to the market for the provision of public infrastructure and/or services (almost as if the risk had to be created in order to have the option of resorting to the concession mechanism)—whereas, in my view, this is rather related to the more limited coverage of concession contracts in the 2004 rules (ie exclusion of services concessions) and the softer-touch regulatory regime in the 2014 package (which influenced the ECJ’s development of the concept of concession so far), and which rather rest on the need to allow for the existence of a closer (contractual) relationship between concessionaire and procuring entity, rather than the other way around. I have this idea in the back of my head that some of the peculiarities of the concessions regime derive from a sort of need to allow for an intuitu personae to be created, which would run contrary to the idea of risk transfer as a sort of market-making or market-incentivising device (which, however, will take me some time to formulate in full).

06. There is talk of ‘hot’ and ‘cold’ concessions, or concessions ‘in the light’ and ‘in the shadows’, or ‘unilateral’, ‘bilateral’ or ‘triangular’ concessions … depending on the sources of revenue/turnover for the concessionaire—which (unnecessarily) complicates issues of analysis of risk transfer (and about the existence of risks, even at a more basic level). In some cases, this leads to difficulties in the setting of boundaries between concession contracts and other forms of public-private partnering or collaboration, which continues to create issues of compatibility of legal regime and normative coordination that could otherwise be avoided through a clearer operationalisation of the procedural flexibility applicable to complex contracts as a more general category.

07. There are also issues concerning the identification of cross-border interest for concessions below the value threshold in the concessions directive—and in line with the ECJ case law, notably in Comune di Ancona—and this raises an additional element of fuzziness of the scope of application of the directive. Given that it is structured as principle-based regulation and that below threshold concessions of cross-border interest are subjected to compliance with general principles (see below), this creates further uncertainty as to the limits of its substantive scope of application. In some jurisdictions (notably the Netherlands), this is particularly clear due to the consolidation into domestic law of the ECJ case law on general principles applicable to below-threshold concessions, and where there is an erosion of the requirement of cross-border interest and substantive convergence between EU and domestic homonymous principles (notably, non-discrimination and equal treatment). This is bound to reduce the scope/risk for reverse discrimination and could simplify the existing multiplicity of (formally) distinct principles-based obligations, and the Dutch experience seems to offer a good case study of substantive consolidation in the area of procurement, in my opinion.

08. Despite the existence of these conceptual and boundary issues, most jurisdictions operate on the same underlying assumption as the 2014 Public Procurement Package and establish a separate legal regime for the award of concession contracts (either within the same statutory framework, such as in the Netherlands or in the Spanish draft legislation, or in a separate instrument, such as in the UK). In my view, this masks the underlying incentives for compliance with general procurement rules in order to avoid situations of ex post realisation that the concessions regime was inapplicable—eg due to the distribution of risk resulting from negotiations or successive rounds of renewed offers, or due to the (limited) extent of potential losses in view of the final financial make-up of the concession contract. In general, a cautious approach to comply with the general procurement rules when in doubt may well neutralise most of the efforts in creating a separate legal regime for ‘covered concessions’ and other concessions, which perpetuates the situation prior to the adoption of the concessions directive.

09. In general, given the uncertainties in pinning-down the specific instances in which a concession contract will remain squarely and solely within the scope of application of the concessions directive, there is an uncomfortable feeling that this process may just be much ado about nothing because the number of contracts that will be solely subjected to this legal regime is likely to be limited, if not residual. However, this once more depends on the domestic interpretation of the scope of application of the rules (and, notably, the concept of concession of a cross-border interest) and the emerging trends show quite some differences, with Italy having advertised in the OJEU over 120 concessions and the UK almost 60, while the Netherlands have advertised around 15 and Denmark only 10 in the first year of effectiveness of the concessions directive.

Gold plating and distinct legal regime

10. The avoidance of gold plating in the transposition of the concessions directive (ie not going beyond what is strictly required by the directive) may be creating practical difficulties due to a copy out (or direct copy+paste) of the EU rules (notably, in the UK, but also in other jurisdictions such as, to some extent, Italy). This results in the insufficient development of an overarching system or mechanism for the award of concession contracts, which mirrors the excesses (or rather shortcomings) of Art 30 and recital (68) Dir 2014/23, and may leave contracting authorities to their own devices and risking the reinvention of the wheel every time they undertake a concession project. In my personal opinion, this may be an instance of improper/insufficient transposition, as the lack of development of the rules applicable to the award of concession contracts leave potentially interested undertakings none the wiser concerning the general framework applicable in the given jurisdiction.

11. In my view, the position underlying a lack of development of the bare bone rules of the concessions directive reflects a rather extreme understanding of Art 30(1) Dir 2014/23 where it indicates that, when tendering a concession, “the contracting authority or contracting entity shall have the freedom to organise the procedure leading to the choice of concessionaire subject to compliance with this Directive”. This seems to be read as mandating unrestricted freedom for each contracting authority or entity—as a sort of (quasi) subjective right to freedom from intervention or constraint in the running of tenders for concession contracts—and thus preventing Member States from creating a limited set of choices or even a default standard procedure for the award of concession contracts. However, the Netherlands seems to take an approach that deviates from this by indicating that Art 30 does not provide unrestricted freedom and that compliance with the general rules may be a way of ensuring compliance with the minimum requirements of the concessions directive.

12. Such an extreme understanding of Art 30(1) Dir 2014/23 does not make much sense, either from the perspective of respecting the principle of free administration by public authorities foreseen in Art 2 thereof (which aims to respect decisions on organisation taken by national, regional and local authorities in conformity with national and Union law), or from facilitating administrative efficiency and oversight possibilities. It also creates legal uncertainty and confusion as to the rules applicable to the tendering of concession contracts, which runs contrary to the stated aims of the concessions directive (see recital (1)) and therefore does not fit with a teleological interpretation of its provisions.

13. Interestingly, though, despite the scarcity of detail in the regime applicable to the tendering of concessions, some jurisdictions (eg in Romania, Belgium, and tendentially the Netherlands too) seem to be moving rather close to the general rules of the public sector directive (Dir 2014/24, either applicable directly or mutatis mutandis) where the concessions directive contains an insufficient regime, which reinforces the idea that there was no need whatsoever for a different instrument and that the flexibility sought for the award of this type of contracts could have been created by a few special provisions under the general directive (as was the Dutch position, and which has influenced transposition in that jurisdiction). Other jurisdictions are opting to move away from statutory rules and rather establishing soft law with the same goal of creating flexibility (possibly at the cost of legal certainty or justiciability, such as in Italy).

14. I also find it interesting that no argument is raised concerning any difficulties in awarding (works) concession contracts under the rules and procedural requirements of the 2004 EU Directives, which begs the question why was it necessary to create such exceptionality or flexibility—particularly in choice of procedures—in the 2014 revision. There are discussions about the special propensity of concession contracts to being modified during their term (both due to their complexity and duration), but interestingly enough, there is not much of a difference in flexibility in the regime of contractual modification in the concessions directive and in the general procurement directive. Overall, then, both the need and the operationalisation of a full-functioning legal regime for the award of concession contracts seems to still carry significant shortcomings when the concessions directive is transposed.

General principles and general administrative law

15. The relevance of general principles for ‘below threshold’ concessions is a muddy terrain and given the largely principles-based approach of the regulation in the concessions directive, it is difficult to establish clear differences in the substantive legal regime for concessions above thresholds and for other concessions with a cross-border interest—which are subject to the general administrative law principles of those jurisdictions that have an established corpus of regulation of unilateral administrative acts (such as Belgium), as well as the obvious application of the general principles of EU (procurement) law across the board.

16. Concession contracts create significant difficulties of interaction with general requirements of the procurement system of some jurisdictions. Eg in Belgium, the principles of fixed price for public contracts (which left all risks linked to the execution of the contract with the public contractor), or of services done and accepted (which controls public expenditure and prevents the making of payments in advance)—which has required the creation of some exemptions from such general rules in order to create flexibility. Similar things happen in Spain with the concepts of ius variandi, factum principis and restoration of the financial equilibrium of concessions. And the same applies to coordination with general administrative law principles in Romania. Thus, countries with a longer-lasting tradition of regulation of concessions under general administrative law may have peculiar difficulties of integration of the new EU regime within their general administrative law frameworks.

A few other issues

17. There are doubts as to the feasibility and conditions for carrying out preliminary market consultations for concessions contracts in keeping with substantive guarantees equivalent to the rules in Arts 40 and 41 Dir 2014/24. The difficulty in this case may derive from the fact that, in the absence of a defined procedure (see above), the issue of carrying out ‘pre-procurement’ activities becomes rather blurry and, in the end, is only restricted by the general requirement in Art 30(2) Dir 2014/23 to comply with the general principles of procurement and, in particular, “during the concession award procedure, [for] the contracting authority or contracting entity … not [to] provide information in a discriminatory manner which may give some candidates or tenderers an advantage over others”.

18. Issues concerning the interaction between rules on rescue/expropriation of concessions and their termination are also popping up, at least where the creation or existence of termination grounds based on the public interest are in conflict with rules on modification of contracts (ie in situations where impossibilities to modify the contract may lead to a rescue, as compared to situations in which a modification may trigger termination). This has an impact on an assessment of the transfer of risk to the concessionaire, which would bring the discussion back to the issue of the concept of concession and scope of application of the directive. In some jurisdictions (eg the UK) the possibility to regulate post-termination or post-ineffectiveness consequences via contractual provisions also muddies the effects of some of the rules in the concessions directive and raise questions as to the compatibility with the remedies directive.

A Scandinavian cautionary tale on lot division and distortions of competition for public contracts (E-3/16)

I have recently written a case comment on the EFTA Court's Judgment of 22 December 2016 in the case Ski Taxi SA, Follo Taxi SA og Ski Follo Taxidrift AS v Staten v/Konkurransetilsynet, E-03/16, which will soon be published in the Journal of European Competition Law & Practice.

The case concerned an instance of joint tendering by two competing taxi companies and it is interesting from a competition law perspective because the EFTA Court treated the joint bid as an anticompetitive price-fixing agreement by object (which limits the need to assess its effects in the market).

Thinking about the case from a public procurement perspective, I think that it also offers a cautionary tale about the restrictions of competition that can derive from decisions on the division of a single procurement into lots. This second perspective is the focus of this post.

The relevant facts of the case are as follows. In 2010, Oslo University Hospital (OUH) ran a public procurement tender for the award of framework agreements for the provision of patient transport services. The object of the tender was divided into nine geographical lots, which related to different catchment areas in the vicinity of the hospital.

For two of those lots, OUH only received a single tender, which was jointly submitted by two taxi companies that OUH would have expected to compete for the contracts. In view of this situation, which OUH interpreted as a privately-created restriction of competition for those lots (and thus insufficient to enable it to obtain value for money), it decided to cancel the procedure for those two lots. It also reported the joint bidders to the Norwegian Competition Authority,which eventually led to the imposition of fines for a price-fixing agreement (as discussed in the case comment).

OUH then launched a new tender procedure. In this occasion, OUH redesigned the geographical coverage and divided the object of the procurement in five areas instead of two. Interestingly, the taxi companies that submitted the joint bid in the previous tender also submitted a joint bid for all five lots, as did two competing taxi companies. OUH eventually entered framework agreements with all three companies, and assigned the joint tenderers second priority in all five areas.

On reflection (and hindsight, of course), it seems plausible that the limited competition in the first round of procurement derived not solely from the decision to submit a joint bid by two of the taxi companies active in those areas, but probably also from the decision to create too broad geographical catchment in the initial design of the lots. If the re-run of the procurement on the basis of smaller geographical lots attracted more competition (while still not changing the strategy of the tenderers that decided to bid jointly), it seems clear that the design of the object of the procurement is key in the prevention (or creation) of publicly-initiated restrictions of competition. From that perspective, more thought (and more market intelligence) is needed if the design of the procurement process is not to result in insufficient competition and thus limit the opportunities for the contracting authority to obtain value for money without distorting competitive trends in the market.

In the specific case, if the single bid for two of the lots had been submitted by a single taxi company (or if an anticompetitive agreement between the joint bidders consisted in an allocation of lots rather than a price-centered strategy), OUH may not have been able to spot the existence of any problems, but it may still have suffered the consequences of the limited competition for the contract that derived from the design of the procurement.

Overall, then, I think that this case offers a valid cautionary tale for contracting authorities regarding the need to make more extensive use of market intelligence and to approach lot division with a more competition-oriented mindset.

Procurement sandboxes, mock procurements and some other thoughts on trying to create space for ‘real world’ experimentation

One of the issues discussed at the most recent meeting of the European Commission Stakeholder Expert Group on Public Procurement (SEGPP) concerned the difficult balance between, on the one hand, promoting integrity in procurement, imposing strict record-keeping requirements (in line with Art 84(2) Dir 2014/24) and ensuring procedural soundness and, on the other hand, avoiding stifling discretion and killing procurement innovation by imposing an excessively rigid straitjacket on procurement professionals (ie how to ensure procurement probity without scaring procurement professionals into following a narrow well-trodden tick-boxing path). In the background, the worry was that procurement professionals that tried to do something 'differently' would be under the Damocles sword of litigation and liability--which would prevent most of them from exploring the boundaries of existing regulation, or possibly induce the most daring to do things under the radar and either not document or not share their practices.

In this context, I suggested that it could be interesting to follow the example of UK financial regulation of FinTech and RegTech innovation (of which I only know a bit thanks to the work of my Bristol colleagues Prof Stanton & Dr Powley, see here) and consider the possibility of creating sandbox experimentation programmes at national level (with the oversight and support of the European Commission). These would be pilot initiatives where, following an application for an exemption from standard enforcement procedures (that is, both infringement procedures under Art 258 TFEU and domestic remedies systems), contracting authorities wanting to explore innovative procedural approaches could seek to take ‘challenge worries’ out of the equation and concentrate on experimenting around innovative procurement processes or on trying out approaches that may not necessarily (easily) fit within the existing regulatory constraints.

Let’s say that the proposal was met with scepticism, but (hopefully) noted for future discussion and consideration.

On further reflection, I truly think that this would be an important contribution to the improvement of public procurement practice and, in the long term, an important input for more practice-oriented regulation. It would, first and foremost, avoid ‘innovative’ or ‘risk-seeking’ public authorities the pains of having to take the issue in their own hands and possibly engage in non-compliant (ie illegal) procedures for the sake of commercial or operative considerations. It would also allow participating undertakings to test the limits of the system and to contribute to a more business-friendly regulation of public procurement. Finally, it would provide a useful space for ‘natural’ experimentation and avoid procurement policy-making (and scholarship!) being always based on theoretical constructions, or on ex post facto conceptualisations/justifications. All in all, in such an applied field of public law/public administration/public management activity, the possibility of resorting to ‘real world’ experimentation would be most welcome and, if done well, potentially very productive.

Thus, I think it may be appropriate to spell out my proposal in some more detail and to invite you all, dear readers, to engage in the discussion—which I will do my best to bring to the attention of my colleagues at the SEGPP and the European Commission in future meetings.

A fuller sketch of my proposal for the creation of procurement sandbox programmes

In compliance with a voluntary general framework created by the European Commission, Member States would create their ‘procurement experimentation programmes’, which would include a choice of options amongst the creation of procurement sandboxes, opportunities (and funding) for mock procurement, and other similar alternatives aimed at facilitating procurement innovation (mind, not the procurement of innovation) by limiting the risk of legal challenge and liability due to an open and transparent engagement in ‘real world’ experimentation with ideas for an improvement of procurement practice—and, on the basis of the learning derived from that practice, of procurement regulation too. Ideally, there could be a prize for best procurement innovation and best contribution to innovation by a participating undertaking, as well as clear pathways for researchers to feed ideas and seek support for experimentation and/or use of the data resulting from the programme.

In order to be ‘allowed to play in the procurement sandbox’, contracting authorities would need to provide a clear rationale of the benefits they sought to obtain with the experiment, as well as a clear description of the specific issues with which they thought compliance would be impossible or tricky, their initial plan of how to deal with them, and a method for the assessment, reporting, and dissemination of insights. In view of such application, the European Commission and the competent domestic authority would decide whether to grant authorisation, as well as the scope of the experiment (in terms of value, duration, and conditions for the experiment). Approved ‘sandbox procurement’ would be advertised as such and participating tenderers would explicitly have to provide a waiver of their right to challenge the final decision on the basis of any of the ‘sandboxed’ issues.

For example, if the contracting authority wanted to experiment around modes of delivery of a specific service, then challenges on the basis of the evaluation of delivery services or the award of parallel contracts (or lots) to providers using different delivery alternatives would not be justiciable—while other issues, such as breaches of transparency requirements or the duty to provide reasons for the specific decisions would be open to challenge.

Similarly, if the contracting authority wanted to experiment around documentary requirements, or around the possibility of doing trial runs in parallel with different suppliers as part of an extended negotiation, or if the contracting authority wanted to trial some ‘sophisticated’ information management strategy during an electronic auction, etc – then, interested undertakings would need to ‘be game’ and accept that their participation in the procedure was primarily for the purpose of experimentation, but would not give them enforceable rights. Of course, in order to incentivise participation, sandbox procurement could (and should) be sweetened by the contracting authority through the payment of participation fees.

Sandbox procurement could also be (randomly) conducted in the context of mock procurement trials not leading to the award of an actual contract—provided the tenderers did not know whether there was a contract to be gained at the end of the process or not (in which case, they would receive a compensation for the participation costs)—similarly to the carrying out of medical experiments involving the use of placebo—although in this case the issue would not necessarily be aimed at creating a control group, but rather at allowing for procurement experimentation with limited financial implications (in particular if the experiment went badly).

Needless to say, sandbox procurement would be most appropriate in scenarios involving scalable procurement innovations, and coordination on an EU-wide basis could allow for the replication of experiments in the context of different legal and business settings, as well as a reduction (if not avoidance) of duplication of innovative efforts.

Upon conclusion of the experiment, the contracting authority and the participating tenderers would draw a report that would be publicly accessible and, progressively, contribute towards the creation of a database of procurement experiments. This would allow for cross-dissemination of innovative best practices, as well as provide good insights into procurement improvement, both at policy-making and legislative levels.

I am aware that this is a controversial, and definitely only half-baked proposal, but I think this is one worth discussing and exploring in the future. Please let me know your thoughts.

AG Wahl issues excessively formalistic Opinion on 'crumbling' reliance on third party capacities (C-223/16)

In his Opinion of 11 May 2017 in Casertana Costruzioni, C-223/16, EU:C:2017:365, AG Wahl has analysed the compatibility with the 2004 EU public procurement rules (Dir 2004/18/EC, Arts 47(2) and 48(3)) of national legislation providing for the automatic exclusion from the tendering procedure of a tenderer that relies on the capacities of another entity which, during that procedure, ceases to have the required capacities--without allowing for the the possibility of replacing that entity for another third party with the appropriate capacity. 

AG Wahl follows a functional approach close to that of AG Bobek in Esaprojekt, and submits that the rule on automatic exclusion is compatible with EU public procurement law. His reasoning deserves close scrutiny, in particular concerning the automaticity of the exclusion, which I am not convinced necessarily derives from his interpretation of previous case law.

At this stage, it is important to stress that AG Wahl follows the approach of the European Court of Justice (ECJ) in Partner Apelski Dariusz to the effect of excluding the possibility of resorting to Directive 2014/24/EU (Art 63) in search for interpretive criteria to be applied to the 2004 rules. In AG Wahl's view, "[i]n permitting economic operators to replace entities which are to be excluded or which do not meet the relevant criteria, Article 63(1) of Directive 2014/24 manifestly introduces new elements as compared to the rules laid down in Article 47(2) and Article 48(3) of Directive 2004/18" (para 36). Therefore, it seems clear that, whether the ECJ follows AG Wahl's Opinion or not in the Casertana Costruzioni Judgment, this will have limited practical effect because, under Directive 2014/24/EU, the automatic exclusion of a tenderer on the basis that its reliance on third party capacities has crumbled is no longer compatible with EU law.  

Referring back to procurement subjected to the 2004 rules, it is important to stress that AG Wahl conceptualises the core legal issue as concerning whether EU law requires Member States to permit the substitution of the entity that has lost the required capacity with one which possesses the required capacity. He rightly points out that this cannot be assessed in abstract terms, but rather needs to be linked to the relevant phase of the procurement procedure. In that regard, he distinguishes three situations, depending on whether the loss of capacity by the third party takes place (i) before the time limit for receipt of the bids expires, (ii) after the expiry of the time limit for receipt of the bids, but before the public authority makes the final award or (iii) after the award of the contract (see paras 18-25).

In AG Wahl's view, substitution of the third party cannot be allowed in situation (i) because in cases where the loss of capacity by the third party happens before the expiry of the time limit for the submission of bids, tenderers are free to withdraw the offer that is no longer compliant with the tender documentation and submit a new offer where they rely on the capacities of a different third party. AG Wahl does not express a view on situation (iii)--and, therefore, skips the opportunity to offer some clarification on the rules concerning the substitution of consortium members [for discussion, see A Sanchez-Graells, Public procurement and the EU competition rules, 2nd edn (Hart, 2015) 339-340].

Most of AG Wahl's analysis thus concerns situation (ii), where the loss of capacity by the third party takes place during the evaluation stage of the award procedure (strictly, after the deadline for the submission of offers--although I would submit that the same approach should be followed in borderline situations between (i) and (ii), where the bidder only discovers the loss of capacity by the third party after the deadline for submission of tenders, or without sufficient time to submit a fresh offer). He clearly submits that the ECJ should declare that no EU rule or general principle of law requires national authorities to permit tenderers, in that situation, to replace the third party that has lost the required capacity. I am not convinced that this is the case.

Concerning explicit rules, AG Wahl is clear in emphasising that "Directive 2004/18 does not contain any provision which expressly requires Member States to allow tenderers to replace economic entities on whose capabilities they have relied, when those entities are to be excluded or do not meet the relevant criteria. Nor is there any provision, in that directive, that could be read as implicitly containing such a rule or principle"; and, consequently, due to the minimum harmonisation nature of the procurement Directive, "which leaves some regulatory discretion to the Member States for what is not expressly regulated therein", "the possible replacement of third parties on which a tenderer has relied ... is an aspect which is, in principle, for the Member States to regulate" (paras 41 and 42).

He then moves on to assess the situation in relation with the general principles of EU public procurement law, which could constrain Member States' legislative discretion. In that regard, he is also clear in establishing that "allowing a tenderer to replace an entity on whose capabilities it sought to rely cannot be regarded either as a clarification of, or as the correction of clerical errors in, its tender. In point of fact, such a change appears to constitute an amendment of an important element of the tender which is, therefore, in principle not permissible" (para 47, emphasis added), which he considers contrary to the requirements of the principles of equal treatment and non-discrimination and the obligation of transparency (para 45).

AG Wahl refers to AG Bobek's Opinion in Esaprojekt to indicate that

such a change may lead to the contracting authority being required to carry out additional checks and could even affect the choice of candidates being invited to present an offer. Furthermore, [Bobek] noted that giving a tenderer a second chance to decide on which entities’ capabilities it wishes to rely, ‘could certainly procure it an advantage that would be at odds with the requirement of equal treatment’.
I agree. I would also add that upholding Casertana Costruzioni’s argument would essentially amount to creating a judge-made rule that grants the possibility of amending bids at a late stage, a possibility which, in the light of the applicable national and EU rules, was not foreseeable by the other tenderers. As mentioned, that would hardly be reconcilable with the principle of equal treatment. Nor would it be compatible with the obligation of transparency incumbent upon the public authorities. Indeed, neither the Italian nor the EU rules in force at the material time provided for such a possibility. Nor was a specific provision on this point included in the invitation to tender (paras 49-50, footnotes omitted). 

On their facts, I am not sure that the comparison with the Esaprojekt case is helpful. Esaprojekt concerns a situation (i) in terms of AG Wahl's classification, in the sense that the third entity in which the tenderer relied (in that case, a consortium of which the tenderer itself formed part) did not meet the requirements of the tender documentation when the offer was submitted. Thus, this situation can be distinguished from the analysis in Casertana Construzioni in relation with situation (ii) scenarios. In the latter case, therefore, the issue does not seem to be framed in the most useful terms because it can be argued that, having taken place after the submission of the offer (which AG assumes to be the case, see para 24), the loss of capacity of the third party was not foreseeable by the tenderer either, which deactivates part of the reasoning bases on potential discrimination.

Moreover, provided that the way in which the contracting authority allowed for the substitution between third entities on which capacity the tenderer relied did not confer a competitive advantage to the tenderer, there can be good reasons to allow it. For example, if the application of the qualitative selection criteria did not involve a ranking, but was rather on a pass / no pass basis, and where the terms of the tender were not altered at all because the new entity simply stepped into the shoes of the no longer capable entity, there seems to be limited scope to consider that the tenderer derives a competitive advantage.

AG Wahl seems to take the opposite view on the basis of the reasoning underlying the ECJ's analysis of a prohibition to change subcontractors in Wall (which AG Wahl discusses in paras 53-56), in relation to which he stresses that it "could be considered [that the substitution of subcontractor] ‘[altered] an essential term of the concession and [thus necessitated] a new tender procedure’ because, in particular, ‘the concession-holder [had] relied on the reputation and technical expertise of the subcontractor when submitting its tender’." However, this is also conceptually problematic because it refers to a situation (iii), and the prohibition of the substitution of subcontractor can have more to do with the ECJ's requirement that contracting authorities are in a position to verify the standing of any subcontractors (as generally discussed by AG Sharpston in her Opinion in Borta, discussed here).

Ultimately, the difficulty with the assessment carried out by AG Wahl in Casertana Construzioni derives from the fact that he considers that "the capabilities of a third party which allow a tenderer to participate in a tender procedure can hardly be regarded as a non-essential element of a bid. The conclusion might have been different, obviously, if the tenderer had itself the required capabilities or if it had relied, for the same requirement, on more than one entity having those capabilities" (para 58, emphasis added). In my view, this is excessively formalistic and a more nuanced analysis would be required. In the specific case, and on the basis of the limited information about the factual situation, it seems that reliance on the third party capacity primarily (or exclusively) served the purpose of ticking the box of holding a formal classification via registration in the relevant classification system (see para 11). If that is the case, then it seems difficult to justify that this constitutes an essential element of the bid, as it could hardly affect its terms or the execution of the works. More generally, it is not clear that any aspect of reliance on third party capacity can be considered an essential element of a bid by definition, and a more detailed assessment seems necessary (along the lines established by the ECJ in Borta, see here).

From that perspective, the analysis based on discrimination and equal treatment does not seem the most relevant to me, and a focus on proportionality between the administrative burden linked to the substitution of third parties and the preservation of competition for the contract would be much more relevant--in which AG Wahl refuses to engage (see paras 62-65). In my view, this is the biggest flaw of the Opinion in this case. I would suggest that, contrary to what AG Wahl considers, the principle of proportionality should have provided the key legal test in this case.

Thus, I would rather have the ECJ depart from his Opinion and declare that the general principles of EU procurement law, and in particular the principle of proportionality coupled with the principle of competition, oppose the automatic exclusion of tenderers that have relied on the capacities of third parties that later lose them, unless the contracting authority can demonstrate that allowing for the substitution of the third party would either infringe the principles of equal treatment, non-discrimination and the obligation of transparency (eg in a situation where the qualitative selection criteria were not assessed on a pass/no pass basis), or would create a disproportionate administrative burden or delay in the conclusion of the procurement procedure. This could create closer functional compatibility in the case law on reliance on third parties and on subcontracting, which I think are currently at risk of imposing functionally incompatible interpretations of the relevant EU public procurement rules.

 

ECJ extends the Manova principles to the submission of samples & clarifies the scope of Remedies Directive in a Utilities Procurement setting (C-131/16)

In its Judgment of 11 May 2017 in Archus and Gama, C-131/16, EU:C:2017:358, the European Court of Justice (ECJ) issued two sets of clarifications concerning the rules applicable to utilities procurement, which are however of general relevance, due to the identity of the relevant provisions under the general and the utilities procurement rules.

First, the ECJ explicitly extended the Manova and Slovensko line of case law to utilities procurement and in relation to the submission of samples, thus trying to clarify the boundaries of the possibility for contracting entities to request  and/or accept clarifications or additional documentation (and samples) from tenderers while still complying with the principles of equal treatment, non-discrimination and the obligation of transparency. This first part of the Archus and Gama Judgment will thus be relevant to the interpretation and application of Art 76(4) of Directive 2014/25/EU (which is identical to Art 56(3) of Directive 2014/24/EU). 

Second, the ECJ also provided clarification of the rules on standing to challenge procurement decisions under Art 1(3) of the Utilities Remedies Directive (which is identical to Art 1(3) of the general procurement Remedies Directive), and clarified that having or having had an interest in the award of the contract extends to situations where the remedy sought by the challenger cannot result in the award of such contract, but is likely to concern the initiation of a new award procedure for the award of a (different) contract with the same subject matter.

Extension of Manova to the submission of samples

In the case at hand, tenderers were required to submit samples of micro-filmed material together with their tenders. The "quality of the microfilm sample was to be assessed according to the ‘satisfies/does not satisfy’ rule, it being stipulated that if the sample was not satisfactory the offer was to be rejected" (para 14). After submission of their tender and during the evaluation phase, joint tenderers Archus and Gama sent the contracting authority a request for a correction of their tender, arguing that "there had been an inadvertent mistake [... and] seeking to substitute a new microfilm sample for that annexed to their tender, which did not conform to the tender specifications" (para 17). The contracting authority accepted the substitution of the microfilm but requested further clarification from the tenderers because it considered that "they had not provided information on the method for microfilming the sample and the [relevant] technical parameters" (para 18). The contracting authority eventually rejected the tender as non-compliant.

In a rather convoluted drafting influenced by the question referred by the domestic court, the ECJ established that the legal issue arising from these circumstances required it to determine "whether the principle of equal treatment ... must be interpreted as precluding ... a contracting authority from inviting tenderers to provide the required declarations or documents which were not supplied by them within the prescribed period for the submission of tenders or to correct those declarations or documents in case of errors, without that contracting authority also being required to point out to those tenderers that they are prohibited from altering the content of the tenders submitted" (para 24). However, there are two factual elements that seems missing here: first, the fact that the initiative for the correction initiated from the tenderers; and, second, the fact that the correction concerned a sample rather than a declaration or document, and therefore it was not information-based. Disappointingly, none of these important details feature with much prominence in the ECJ's analysis (despite para 35 referring to the fact that "it was [the] tenderers who sent the contracting authority a request for their tender to be corrected"). 

Indeed, in this part of the Judgment (paras 29-33), the ECJ provides a summary of the Manova and Slovensko line of case law and, in simplified terms, reiterates that "the principle of equal treatment does not preclude the correction or amplification of details of a tender, where it is clear that they require clarification or where it is a question of the correction of obvious clerical errors, subject, however, to the fulfilment of certain requirements" (para 29, emphasis added), such as:

  • a request for clarification of a tender cannot be made until after the contracting authority has looked at all the tenders and must, as a general rule, be sent in an equivalent manner to all undertakings which are in the same situation and must relate to all sections of the tender which require clarification (para 30)
  • that request may not lead to the submission by a tenderer of what would appear in reality to be a new tender (para 31)
  • as a general rule, when exercising its discretion as regards the right to ask a tenderer to clarify its tender, the contracting authority must treat tenderers equally and fairly, in such a way that a request for clarification does not appear unduly to have favoured or disadvantaged the tenderer or tenderers to which the request was addressed, once the procedure for selection of tenders has been completed and in the light of its outcome (para 32)

The ECJ also reiterated that "a request for clarification cannot, however, make up for the lack of a document or information whose production was required by the contract documents, the contracting authority being required to comply strictly with the criteria which it has itself laid down" (para 33, emphasis added). 

When trying to apply these general principles to the situation at hand, the ECJ established that "a request sent by the contracting authority to a tenderer to supply the declarations and documents required cannot, in principle, have any other aim than the clarification of the tender or the correction of an obvious error vitiating the tender. It cannot, therefore, permit a tenderer generally to supply declarations and documents which were required to be sent in accordance with the tender specification and which were not sent within the time limit for tenders to be submitted. Nor can it ... result in the presentation by a tenderer of documents containing corrections where in reality they constitute a new tender" (para 36); ultimately leaving it to the "referring court to determine whether ... the substitution made by Archus and Gama remained within the limits of the correction of an obvious error vitiating its tender" (para 38, emphasis added).

I find this reasoning of limited assistance in assessing the legal issue at hand. It would seem to me that the fact that the tenderers unilaterally sought to modify their tender in relation with a sample of the output of the services they were offering should have been given more weight (as this did not result from the observation of an obvious shortcoming or mistake by the contracting authority), and the difficulties in establishing objectively what is obviously wrong with a sample probably should have been enough relevance to provide a more conclusive answer against the acceptability of the substitution of samples.

From that perspective, confronted with a defective sample, the contracting authority could simply observe a deviation from the tender requirements, but it could hardly establish whether the defect resulted from an obvious mistake (ie whether the tenderer mistakenly submitted the wrong sample, as they claimed), or establish a way of clarifying the reasons for the defectiveness of the sample without allowing for the submission of a sample equivalent to the submission of a different tender. Differently from documents and declarations, or from the inclusion of insufficient details or mistakes in an offer, a sample is meant to evidence the product to be supplied or to result from the provision of the services. It is difficult to imagine circumstances under which a contracting authority could meet the strictures of the Manova-Slovensko case law while prompting the tenderer to submit an alternative sample. Moreover, under the rules applicable to the tender, it seems clear that a defective sample should trigger rejection of the tender, without any further analysis, which the ECJ does not seem to give much relevance to either.

Overall, I think that there is enough to justify the rejection of the possibility to substitute samples (in particular at the initiative of the tenderers) within the confines of the Manova-Slovensko test. However, I find this part of the Archus and Gama Judgment slightly confusing due to its open ended wording and, more importantly, to the practical difficulties in applying a test originally meant to correct missing or obviously erroneous information in documents to issues concerning the manifestation of technical aspects in a sample.

On this occasion, I tend to think that the ECJ has possibly pushed too far in trying to create procedural flexibility. While the absence of a sample could have allowed for the contracting authority to request the submission of one (because the problem with the tender would have been obvious), an attempt by the tenderers to substitute a previously submitted sample raises a whole host of other issues. In cases such as this, it may be preferable to have a clear cut rule against the possibility to substitute the sample. Moreover, given that the tender documents had explicitly indicated that rejection of the sample would also imply the rejection of the offer, it is difficult to understand why the ECJ has deviated from its previous approach to imposing compliance with the specific rules created in the tender documentation by the contracting authority itself (not that I find it always or generally convincing (see eg here), but a deviation from that approach seems to create inconsistency). Thus, I do not think this part of the Archus and Gama Judgment deserves a positive assessment.

Clarification of the scope of active standing under the remedies directive

In relation to a rather distinct aspect of the same case, the ECJ was also asked to clarify "whether Article 1(3) of [the Utilities Remedies Directive] must be interpreted as meaning that the concept of ‘a particular contract’ ... refers to a specific public procurement procedure or the actual subject matter of the contract which is to be awarded following a public procurement procedure, in a situation where only two tenders have been submitted and where the tenderer whose tender has been rejected may be regarded as having an interest in seeking the rejection of the tender of the other tenderer and, as a result, the initiation of a new public procurement procedure" (para 47).

Maybe in simpler words, the question concerned whether the EU rules grant legal standing to challenge a procurement decision to disappointed tenderers that are found to be properly excluded and, rather than seeking a remedy concerning the award of the contract as part of the procedure where the dispute arose (which would not be possible), may rather be interested in the cancellation of that procedure and the start of a fresh tender. In the end, the clarification concerned the tenability under EU law of a position that interpreted that "an economic operator who has submitted a tender in a public procurement procedure does not, where his tender is rejected, have an interest in bringing proceedings against the decision awarding the public contract" (para 48).

The answer provided by the ECJ is narrowly tailored to the specific circumstances of the case, as it established that "in a situation ... in which ... two tenders have been submitted and the contracting authority has adopted two simultaneous decisions rejecting the offer of one tenderer and awarding the contract to the other, the unsuccessful tenderer who brings an action against those two decisions must be able to request the exclusion of the tender of the successful tenderer, so that the concept of ‘a particular contract’ within the meaning of Article 1(3) of [the Utilities Remedies Directive] may, where appropriate, apply to the possible initiation of a new public procurement procedure" (para 59).

This interpretation seems generally uncontroversial and follows the same path of extension of the justiciability of exclusion and qualitative selection grounds as the recent Marina del Mediterráneo Judgment (see here). However, it also seems very limited to circumstances that may be difficult to meet in practice in a large number of procedures, such as the fact that only two tenderers participated in the procedure, or that the decisions to reject one tender and award the contract to the other were adopted simultaneously. In that regard, the ECJ could have been slightly bolder and simply clarified that retaining the possibility of being awarded a contract under the same (administrative) procedure is not a pre-requisite for the recognition of active standing to challenge procurement procedures under the EU rules. I would have preferred this broader approach, which could have saved future preliminary references on the basis of cases with minor variations of the underlying factual scenario.

The curious case of the open envelope inside the envelope - a propos GC's Gfi PSF v Commission Judgment (T-200/16)

The General Court of the Court of Justice of the European Union (GC) has issued Judgment in case Gfi PSF v Commission, T-200/16, EU:T:2017:294 (available in French only). This is a curious case about the physical formalities imposed in a procurement procedure carried out by the European Commission (Publications Office), which required a set of envelopes to be enclosed in multiple layers so as to avoid their tampering prior to the official opening of bids. It is also interesting because it raises some issues around the difficulties in the fact finding of processes dominated by formal documentary evidence.

I am also afraid that the factual circumstances of the case are probably rather common in practice (they remind me of the submission of a tender for a multi-million concession contract that had to be submitted in suitcases locked with padlocks in Mexico some 10 years ago), and I guess that the case also reflects some of the advantages that could be gained by a proper migration to e-procurement (or at least to electronic submission of tenders).

In the case at hand, tenderers had to prepare their tenders in two separate envelopes. An envelope (a) containing their technical offer and an envelope (b) containing their financial offer. Both envelopes then had to be enclosed in a third envelope (c) marked as "Tender - not to be opened by the internal mail service" and placed in a fourth envelop (d), which had to be sent by registered mail or courier service, or be submitted in the offices of the European Commission as indicated in the letter of invitation to tender.

Gfi PSF prepared its tender in accordance with these instructions and sent it to the European Commission via UPS. However, t is worth noting that, inside envelope (c), Gfi PSF did not only include envelopes (a) and (b), but also several binders including additional information. The tender was submitted in time and there is an electronic receipt issued by UPS with a signature from a Commission official. However, an acknowledgement of receipt was also prepared by the mail service of the European Commission indicating that the offer had been received, but not in good state, and also including the following:

two headings, relating respectively to the "first container" and the "second container". In the section on the first container, the pre-printed indications "open" and "damaged" have both been checked. In the section on the second container, the same information was also checked. This last heading also contains the words "did not include the words "Do not open by the mail office"" and "there were no double envelopes", which were not checked (T-200/16, para 7, own translation from French).

After proceeding to the formal opening of the tenders, Gfi PSF's was rejected on the basis that the tender was already open when the contracting authority received it, which is a cause for rejection under Art 111(4)(b) of the Financial Regulation. After Gfi PSF challenged this decision and asked for additional details, the European Commission wrote a letter indicating that

even if the electronic receipt [issued by UPS] did not contain any remarks as to the status of the consignment containing the applicant's tender, this was because of the technical constraints of the terminal used by the courier acting for UPS. The [Commission's] note of receipt acknowledging the damage of the consignment was signed jointly by the same courier and a representative of the [Commission]. Copies of this note and a photograph of the said item were annexed to the" Commission's letter (T-200/16, para 13, own translation from French).

After inspecting the envelopes still in the custody of the Commission, counsel for Gfi PSF challenged the time, the content, and the probationary value of this acknowledgement of receipt issued by the Commission. It also sought to prove that the document had been issued unilaterally by the Commission because it was not clear that UPS had signed the note (which is however later proven wrong by the GC, see paras 53-54), and submitted that in any case the state of the offer resulted from improper handling by the Commission's mail services, rather than as a result of defective compliance with the physical requirements for the submission of the offer by Gfi PSF at the time of its expedition.

The Commission opposed this interpretation of the documents (in particular the lack of signature by a UPS representative) and the physical evidence (ie damaged envelopes), and provided additional evidence downloaded from UPS' tracking webpage, where the following remarks appeared from entries logged in the weeks following the delivery of the package to the Commission:

"[t] he goods are lacking. UPS will notify the additional details to the consignor / goods entrusted to the consignee "; and ... " [t]he damage to the contents of the packages has been reported [;] We will notify the consignor / We are investigating the claim for damages" (T-200/16, para 18, own translation from French).

Overall, then, the dispute concerns the factual circumstances of the delivery, the documentation of its receipt, as well as the ensuing investigation of the Commission's claim that the package was delivered by UPS. It is hard to imagine the physical state of the envelopes (it would have helped to have the pictures attached to the GC's Judgment), but it is certainly plausible that the envelopes where stacked in such a way that opening envelop (d) also ripped envelop (c) (particularly if they were of similar sizes). Be it as it may, the reasoning of the GC is interesting beyond the specific issues leading to the discrepancy in the state of the offer at the time of submission and of the formal opening of the tenders, which exonerates the Commission from any responsibility.

In the GC's view

... the acknowledgement of receipt is of significant probative value, since its content is attested by the signatures, on the one hand, of a person subject to the contracting authority and, on the other hand, by a third party not directly involved in the procurement tender, but rather acting indirectly on behalf of the tenderer whose tender is considered irregular by the contracting authority. However, the acknowledgement of receipt contains indications that both the first and second containers were both open and damaged, and that the second container displayed the words "Not to be open by the mail office" and contained a double envelope (T-200/16, paras 57-58, own translation from French).

This would create a difficulty in establishing the moment in which envelop (c) had been opened despite including the prescribed label against it. However, given the very peculiar circumstances of the case, where envelop (c) contained not only envelops (a) and (b)--which may not have been compromised--but also the binders including additional information, the GC found a way out by adopting a functional approach to the rules in Art 111(4)(b) Financial Regulation from the perspective of the integrity of the process. In that regard, it stressed that the submission instructions and Art 111(4)(b) aimed to ensure the confidentiality of all tenders until they are simultaneously open. From that perspective, the factual circumstances of the case led to the assessment that

On the one hand, the applicant does not claim that the binders were themselves placed in a closed envelope, the binders being visible in the photograph to which it refers, annexed to the letter of [the Commission sent during the debriefing and complaints procedure]. Furthermore, the fact that the binders were placed by the applicant in an envelope on which it indicated that it had affixed the words 'invitation to tender - not to be opened by the courier' [ie envelop (c)], which is established by the acknowledgment of receipt, shows that in the applicants' own view, the binders contained documents constituting its tender. Consequently, and due to the fact that it must be held that the outer envelope and the intermediate envelope of the item containing the applicant's tender had been presented open on the premises of the [European Commission], it must be found that certain data forming part of the applicant's offer were directly accessible. Consequently, it appears that the applicant's tender was submitted in such a way that its confidentiality, as required by Article 111 (1) of the Financial Regulation, was not guaranteed, as it was "already open" within the meaning of paragraph 4 (b) of that Article. Consequently, this offer was regularly rejected (T-200/16, paras 65-66, own translation from French).

This is important because the GC has no interest in (and probably no possibility to) establishing the way in which envelope (c) came to be open despite it being labelled as not to be open by the mail service. This fits with the burden of proof derived from a claim for damages based on Art 340 TFEU, which was the relevant underlying legal basis for this case. However, this leaves important questions unanswered, such as what would have happened if the binders were sealed in envelops, so that the opening of envelope (c) would not have made any of the contents of the offer directly accessible. In that case, the rejection of the offer on the basis that it had already been opened would be very problematic and would probably have required further investigation of how this came to be.

On balance, it seems that the GC places the burden of ensuring that the offers remain confidential on the tenderers, at least implicitly, by supporting a broad approach to the rejection of offers which confidentiality may have been compromised. As a matter of general trend, this seems preferable to the opposite. However, this also shows the unavoidable limitations of paper-based procurement procedures. Had the Commission been running an e-procurement (or at least electronic submission) process, this situation could have been easily avoided. It seems that, once more, the adaptation of procurement (and administrative activity, more generally) to new technologies cannot come quickly enough.

ECJ clarifies that reliance on third party capacities is not possible after the tenderer has been found not to comply with qualitative selection criteria (C-387/14)

In its Judgment of 4 May 2017 in Esaprojekt, C-387/14, EU:C:2017:338, the European Court of Justice (ECJ) provided clarification on some practical issues concerning the application of qualitative selection criteria to tenderers for public contracts seeking to rely on the capacities of third parties. The case is interesting because it concerns a situation where reliance on third party capacities is only sought once the contracting authority has reached a decision that the tenderer does not meet the relevant qualitative selection criteria on its own (or in the consortium configuration used in the submission of the initial tender).  

Thus, the case combines elements of clarification or supplementation of tender documentation with issues derived from the principles of non-discrimination, equal treatment and transparency. The Esaprojekt Judgment is based on the 2004 EU procurement rules (Dir 2004/18, Arts 2, 45, 48 and 51) but it is relevant for the interpretation of the 2014 rules as well (Dir 2014/24/EU, Arts 18, 19, 57 to 60, 63 and, specially, 56(3)).

In the case at hand, and in simple terms, the tenderer that submitted the preferred bid for the provision of IT services (Konsultant Komputer) had declared that it had the required previous experience through the execution of two contracts prior to the tender. However, on a challenge from a disappointed bidder (Esaprojekt), the contracting authority found that such previous experience was not acceptable because it did not concern contracts of the same type required in the tender documentation. At this stage, Konsultant Komputer sought to 'complement' the documentation evidencing its experience by providing the contracting authority with "a new list of supplies in which it relied on the experience of another entity, Medinet Systemy Informatyczne sp. z o.o. concerning two supplies ... It also sent an undertaking from Medinet Systemy Informatyczne to provide, as an advisor and consultant, the resources necessary for the performance of the contract ..." (C-387/14, para 27).

The contracting authority was satisfied with the submission of such 'complement' to the previous documentation, but (unsurprisingly), this was challenged by Esaprojekt on the basis that "Konsultant Komputer ... had submitted false information and had failed to prove that it had fulfilled the conditions for participation in the procedure" (para 29). The Polish court referring the case for preliminary ruling to the ECJ condensed the main legal issues as concerning whether the EU procurement rules (1) "preclude an economic operator, when it supplements documents at the request of the contracting authority, from relying on supplies of services other than those it included in its initial bid or from being able to rely, in that regard, on supplies of services made by another entity on whose resources it did not rely in its initial bid" (para 30); (2) whether, in the circumstances of the case, "the economic operator is able to ... rely on the capacities of other entities where it does not itself fulfil the minimum conditions required in order to take part in the tender procedure for a service contract" (para 31); and (3) the need to determine "in which circumstances an economic operator may be held liable for serious misconduct and, therefore, be excluded from taking part in a public contract" due to the supply of incorrect or misleading information concerning its previous experience (para 32). However, the questions referred to the ECJ do not map these three legal issues, but rather raise some other (more specific) issues.

It will not be surprising to find that the ECJ, in general, declared that proceeding as Konsultant Komputer and the contracting authority did was not allowed under the relevant provisions. On the main point concerning whether there was a breach of the requirements derived from the procurement rules and the general principles of procurement, after relying extensively on the principled framework consolidated in Partner Apelski Dariusz, the ECJ clarified that "Konsultant Komputer submitted documents to the contracting authority which were not included in its initial bid after the expiry of the time limit laid down for submitting applications for the public tender concerned. In particular ... it relied on a contract performed by another entity and the undertaking by the latter to place at the disposal of that operator the resources necessary for the performance of the contract ... Such further information, far from being merely a clarification made on a limited or specific basis or a correction of obvious material errors ... is in reality a substantive and significant amendment of the initial bid, which is more akin to the submission of a new tender" (paras 41-42). Thus, "by allowing the presentation by the economic operator concerned of the documents in question in order to supplement its original tender, the contracting authority unduly favour[ed] that operator as compared with other candidates and, thereby, breache[d] the principles of equal treatment and non-discrimination of economic operators and the obligation of transparency which derives from them" (para 44).

The ECJ later addressed more specific issues. The following is thus just a short excerpt of the relevant parts of the Esaprojekt Judgment in relation to each of the issues--while some more critical reflections are saved for the final part of this post.

First, the ECJ considered the possibility of combining the knowledge and experience of two entities to meet a selection criterion where those entities do not separately have the capacities required to perform a particular contract, and where the contracting authority considers that the contract concerned cannot be divided and must thus be performed by a single operator. On that point, after slightly reinterpreting the question, the ECJ established that the relevant rules do "not allow an economic operator to rely on the capacities of another entity ... by combining the knowledge and experience of two entities which, individually, do not have the capacities required for the performance of a particular contract, where the contracting authority considers that the contract concerned cannot be divided, in that it must be performed by a single operator, and that such exclusion of the possibility to rely on the experience of several economic operators is related and proportionate to the subject matter of the contract which must be therefore performed by a single operator" (para 54).

Second, it considered the possibility for an economic operator that participates individually in an award procedure for a public contract to rely on the experience of a group of undertakings, of which it was part in connection with another public contract, irrespective of the nature of its participation in the performance of the latter. The ECJ found that the EU rules allow "an economic operator, for a particular contract, to rely on the capacities of other entities, such as a group of undertakings of which it is a member, so long as it proves to the contracting authority that that operator will have at its disposal the resources necessary for the execution of the contract" (para 60). Further, it clarified that "where an economic operator relies on the experience of a group of undertakings in which it has participated, that experience must be assessed in relation to the effective participation of that operator and, therefore, to its actual contribution to the performance of an activity required of that group in the context of a specific public contract" because, from a practical perspective, "an economic operator acquires experience not by the mere fact of being a member of a group of undertakings without any regard for its contribution to that group, but only by directly participating in the performance of at least part of the contract, the whole of which is to be performed by that group" and, consequently, "an economic operator cannot rely on the supplies of services by other members of a group of undertakings in which it has not actually and directly participated as experience required by the contracting authority" (paras 62-64).

Third, the ECJ was asked whether the possibility to exclude economic operators that are guilty of serious misrepresentation when supplying information requested by the contracting authority may be applied where the information is of such a nature as to affect the outcome of the call for tenders, irrespective of whether the economic operator acted intentionally or not. On this point, the ECJ concluded that the discretionary exclusion "may be applied where the operator concerned is guilty of a certain degree of negligence, that is to say negligence of a nature which may have a decisive effect on decisions concerning exclusion, selection or award of a public contract, irrespective of whether there is a finding of wilful misconduct on the part of that operator" (para 78) and, more explicitly, that "in order to sanction an economic operator which has submitted false declarations by excluding its participation in a public contract, the contracting authority is not required ... to provide evidence of the existence of wilful misconduct on the part of that economic operator" (para 72).

Finally, the considered whether EU procurement law allows an economic operator to justify compliance with an experience-based selection criterion by relying simultaneously on two or more contracts as a single contract (or, in other words, by combining different partial elements of experience), despite the fact that the contracting authority has not expressly provided for such a possibility either in the contract notice or in the tender specifications. On this point, the ECJ found that "it is conceivable prima facie that the experience necessary for the performance of the contract concerned, acquired by the economic operator in the performance of not one, but two or more different contracts, may be regarded as sufficient by the contracting authority and thereby enables that operator to win the public contract concerned" (para 85) and, therefore, "in so far as the possibility to rely on experience acquired in relation to several contracts has not been excluded either in the contract notice or in the tender specifications, it is for the contracting authority, subject to review by the competent national courts, to check whether the experience gained from two or more contracts, having regard to the nature of the works concerned and the subject matter and purpose of the contract concerned, ensures the proper performance of that contract" (para 87).

Overall, the level of clarification provided by the ECJ in the Esaprojekt should be welcome, although it also raises the broader issue of the extent to which national courts should be willing to engage in principles-based reasoning without referring extremely detailed references for preliminary rulings. There is a clear trade-off to be achieved between ensuring homogeneous interpretation of the EU public procurement rules and (not) overburdening the ECJ. If every case where the general principles of public procurement (now in Art 18(1) Dir 2014/24/EU) are applicable is referred to the ECJ, the system will not be able to cope. In my view, none of the issues raised in this case were particularly complex or controversial, and could have been resolved by general reference to the principles of equal treatment and transparency, which makes me wonder if there may not be a need for a different approach to these issues.

For example, discussion between practitioners has raised the issue whether it would be acceptable for an undertaking in a situation similar to Konsultant Komputer's first submission to 'complement' the selection documentation by supplying a fresh list of new own references (or references to its own experience not submitted in the original documentation). I would submit that it is not allowed. In my view, it is clearly not allowed if the experience has been gained after the date for the submission of tenders, because that establishes the relevant cut off point for the assessment of qualitative suitability (or responsiveness). And, also clearly (although it may be more debatable), this would not be allowed if the experience was gained before that date but the economic operator failed to include the relevant references in the original documentation. I think that this is the case because such an omission of previous experience is not observable by the contracting authority in view of the submitted documentation alone (how could it second guess whether the economic operator provided a full, or even the best, set of references?)--which, in my opinion, excludes it from the scope of application of the rules controlling the request for clarifications under both the Manova case law and the specific provisions of Art 56(3) Dir 2014/24/EU, except if the entire document concerning experience was missing (which would make the defect visible to the contracting authority). Functionally, I would think that this contributes to the manageability of the selection process, while being entirely compliant with the principles of equal treatment and non-discrimination.

Anyway, the point I am trying to make is that, if issues at this level of detail need to be clarified by the ECJ in relation with each of the provisions of the procurement directives, the potential gains of having regulation partly based on general principles will be lost. Therefore, I wonder if it would be possible to reconsider the need for preliminary references where the application of general principles could do.

Is allocating airport space to groundhandling operators, even if only temporarily, subject to eu utilities procurement rules? (AG Opinion in C-701/15)

In his Opinion of 3 May 2017 in the case of Malpensa Logistica Europa,
C-701/15, EU:C:2017:332, Advocate General Campos Sánchez-Bordona has considered the extent to which an airport management company is under a duty to carry out a tendering procedure when temporarily allocating certain airport facilities to groundhandling services companies, under the rules of Directive 2004/17/EC on utilities procurement and Directive 96/67/EC on access to groundhandling market at EU airports.

In the case at hand, the body managing the Milan Malpensa airport (SEA) carried out a competitive procedure for the allocation of certain areas within the airport to groundhandling operators. Both Beta-Trans and Malpensa Logistica submitted bids in that selection procedure for the performance of handling activities at the airport. Beta-Trans was successful. However, it was unable to occupy the area assigned to it because the space was not yet ready and had to be fitted out. SEA therefore gave Beta-Trans the temporary use of a hangar so that it could commence its groundhandling activities immediately. The allocation of the hangar was merely temporary until the ‘final area’ was ready for use (scheduled for July 2017) (AGO in C-701/15, paras 22-23). The decision to temporarily allocate the hangar to Beta-Trans was challenged by Malpensa Logistica on the basis that this should also have been subjected to a (separate) public selection procedure.

In general terms, I think it is clear that a procedure for the allocation of airport space to groundhandling operators authorised to provide services in that airport should not be covered by the utilities procurement directive (either the 2004 version, or the current 2014 version, or the 2014 concessions directive) because the body managing the airport is not procuring services from those companies when it takes the space allocation decision. This could have led to a rather straightforward subjection of SEA's decision to the specific procedures for access to groundhandling only, which did not require such competitive tendering. However, the referring court had indicated that, under relevant case law of the Italian Consiglio di Stato, domestic public procurement legislation transposing Directive 2004/17/EC governed the concession of areas within airports for the provision of groundhandling services. Since the award of those concessions came within the material scope of the legislation on special sectors, a public selection procedure had to be conducted (AGO in C-701/15, para 25).

This is relevant because the Italian procurement rules (rectius, their interpretive case law) may impose requirements that go beyond those derived from Directive 96/67/EC on access to groundhandling markets and its Italian transposition. Therefore, the main legal issue concerns a clash between the Italian instruments transposing EU rules, rather than between the EU rules themselves. However, both layers of legislation need to be coordinated in order to ensure regulatory consistency--and the Opinion of AG Campos seems to show that there may be underlying coordination issues concerning the definition of public contracts that remain unaddressed. Additionally, the case is interesting in the flexibility that AG Campos tries to create for temporary 'substitutory' measures under the groundhandling market access rules, which may however not be exportable to decisions actually covered by the procurement rules. Each of these issues is discussed in turn below.

Difficulties concerning the concept of public contract?

On the domestic peculiarities of the case, AG Campos indicates that the "fact that both sets of national provisions ‘are derived from EU law’ ... does not prevent the Italian legislature from requiring that public selection procedures apply in the case of allocations of areas within airports ... [even if they] are not covered by Directive 2004/17. Whilst that directive certainly requires that contracts falling within its scope be awarded in accordance with its provisions, there is nothing to prevent a Member State from deciding, on its own initiative, to extend those rules to other contractual arrangements" (AGO in C-701/15, para 45).  While the principle behind this statement seems correct in so far as Directive 96/67/EC is a liberalisation instrument rather than a maximum harmonisation directive, it seems to me that the instrument and the reasons used by Italian law to impose additional requirements deserve additional scrutiny.

There can be a problem if the sole reason why the Consiglio di Stato mandates compliance with domestic rules transposing Directive 2004/17/EC in decisions involving the allocation of rights to use areas within airports for the provision of groundhandling services (which are not concessions, in the technical meaning of EU procurement rules) is that it considers these decisions "within the material scope of the legislation on special sectors [procurement]" (AGO in C-701/15, para 25). This would be a misinterpretation of the relevant EU rules because, as rightly concluded by AG Campos, given that this is an arrangement akin to the rental of the relevant space by the contracting entity (which receives the relevant fees rather than paying any pecuniary compensation), the allocation of the right to use "airport facilities to a supplier so that the latter can provide groundhandling services to third parties cannot be classified as a public service contract for the purpose of Article 1(2)(a) and (d) of Directive 2004/17, with the result that the relationship referred to in the main proceedings falls outside the scope of that directive" (AGO in C-701/15, para 53). In my view, such misinterpretation should not be saved on the basis of the Member States' abstract ability of creating requirements beyond those in Directive 2004/17/EC.

If the Consiglio di Stato case law solely (or primarily) relies on an improper interpretation of the domestic rules in relation with EU rules (which cannot be ascertained on the basis of the information in the Opinion), Italian law would not be respecting the material scope of EU public procurement rules because it would be distorting (ie expanding) the definition of public contract--both under Art 1(2)(a) Dir 2004/17/EC, and under the equivalent provisions of the 2014 EU public procurement rules, including the definition of services concessions in Art 5(1)(b) Dir 2014/23/EU. This could be important because, in the absence of separate/explicit domestic rules explicitly subjecting these decisions to competitive tendering, it is questionable that the case law of the Consiglio di Stato can be seen in compliance with the supremacy of EU law (in terms of respecting the interpretation of the concept of public contract and public procurement by the CJEU, which continues to gain prominence in recent cases such as Falk Pharma or Remondis) and the duty of consistent interpretation--as well as raising issues about the possibility of expanding the scope of legislation through case law under Italian constitutional rules, which I am in no position to assess.

Also, while the deviation from the concept of public contract may be seen not to create problems in this specific instance because the (possibly wrong) interpretation embedded in the case law of the Consiglio di Stato results in overcompliance, this can be an issue in terms of ensuring a level playing field across the EU in utilities sectors. Therefore, in my opinion, this is an issue that could merit close assessment in relation with the Italian transposition of the 2014 EU Public Procurement Package.

The scope for temporary 'substitutory' measures

The second aspect of the Malpensa Logistica Europa Opinion that I find relevant concerns AG Campos' approach to the requirements applicable to the temporary allocation of the use of the hangar as a substitutory measure. In that regard, he submits to the Court that the analysis should proceed as follows:

... SEA awarded Beta-Trans the definitive airport facilities as the result of a competitive selection procedure in which Malpensa Logistica also participated. ... the assignment of the temporary hangar ... came about because the area which had been definitively awarded was not ready.
These factors (the temporary nature of the hangar and the existence of an earlier competitive procedure) may be relevant in determining whether SEA complied with Article 16(2) of Directive 96/67. Since this provision allows the managing body a broad discretion, subject to the [obligation to to observe, when allocating areas or facilities within airports, ‘relevant, objective, transparent and non-discriminatory rules and criteria’], responsibility for assessing it lies with the national courts.
It should also be borne in mind that the objectives of Directive 96/67 include encouraging the presence of new suppliers of groundhandling services and that one of the criteria for assigning available space within airports is to promote ‘effective and fair’ competition between all operators, ‘including new entrants in the field’. Effective competition precisely requires the removal of barriers preventing the entry of new operators. From that perspective, the principles of objectivity, transparency and non-discrimination may justify decisions on the allocation of areas which take account of the situation of suppliers of groundhandling services already in place and their possible dominance in the provision of those services at a given airport (AGO in C-701/15, paras 73-75, footnotes omitted).

I find this reasoning interesting because it suggests that the adoption of substitutory measures aimed at facilitating competition on a temporary or anticipatory basis is allowable where the deciding entity is under an obligation to adopt decisions in compliance with 'relevant, objective, transparent and non-discriminatory rules and criteria'. This could be important because, at least functionally, it would imply that having carried out a competitive procedure for a specific object (ie the space allocated on a permanent or definitive basis) provides legal cover for a temporary modification of the object of the authorisation or licence to use that object (ie the temporary assignment of alternative space). This makes commercial sense and avoids situations where the effects expected from the initial competitive procedure can be delayed or frustrated.

However, when compared with the rules on contract modification under the EU procurement rules, one can wonder if the same flexible and commercially-oriented approach could pass legal muster. Given that delays are common in public contracts (most likely, that was also the case for the lack of availability of the definitive premises at Malpensa), it would be interesting to see how the analysis would play out if it was a public contractor to offer an alternative, temporary solution to a contracting authority or entity. In that case, my guess is that this would be assessed as a contract modification of difficult assessment under value-based thresholds, and probably subjected to an analysis of whether the modification is substantial (cfr Art 72(4) Dir 2014/24/EU, Art 80(4) Dir 2014/25/EU and Art 43(4) DIr 2014/23/EU), which could easily lead to a finding that the temporary substitutory measure was not allowed--unless the ECJ would be willing to deviate from recent decisions, such as Finn Frogne.

Of course, this falls short from showing a stark internal contradiction between different sets of rules within the broader system of EU economic law, but I think that it does indicate that the internal market logic--and even the pro-competitive logic--that underlies the system can create opposing normative criteria, unless they are reconciled with some checks and balances based on commercial considerations. Not that this is bound to carry legal weight, but it may help construct a different parameter of evaluation closer to the concept of market economy agent, which could provide some additional consistency in the area of EU economic law.

Looking closely at the RegioPost case: two new papers on public procurement and labour standards under eu law

I have been working on the implications of the RegioPost Judgment for a while (I can't believe it will soon be a year since the conference we held at the University of Bristol Law School), and finally uploaded two new papers on SSRN where I discuss different aspects of the case and its implications for the enforcement of labour standards through public procurement regulated by the 2014 EU Public Procurement Package.

The first paper is concerned with the regulatory substitution implicit in the inclusion of social and employment-related considerations in public procurement. The second paper is concerned with the competition and State aid implications of the asymmetrical rules on minimum wage requirements that result from RegioPost, Rüffert and Bundesdruckerei. Below are some additional details on each of the papers. I hope that both papers manage to provide complementary views on the many issues that derive from the interaction between EU public procurement law, EU labour law and EU free movement law. Feedback most welcome!

Regulatory Substitution between Labour & Public Procurement Law: EU's Shifting Approach to Enforcing Labour Standards in Public Contracts

In this paper, I reflect about a recent regulatory trend concerning the enforcement of labour standards through contract compliance clauses and other requirements of public contracts tendered under European Union public procurement law. On the back of recent developments in the case law of the European Court of Justice regarding cross-border situations of procurement-based enforcement of labour standards, notably in the re-examination of the Rüffert case in both the Bundesdruckerei and RegioPost cases, I reflect on this phenomenon from the perspective of regulatory substitution. In setting out a basic framework to assess regulatory substitution, I hypothesise that most of the difficulties evidenced by the case law stem from the transfer of labour regulation goals to the public procurement sphere. I then aim to test this hypothesis by means of an analysis of labour policy-oriented mechanisms included in the 2014 revision of the EU public procurement rules. I then go on to critically assess the fitness for purpose of the procurement mechanisms from the perspective of contributing to the enforcement of labour standards. And I ultimately extract some general conclusions that can be of relevance in non-EU jurisdictions where similar trends of regulatory substitution between labour and public procurement law may be emerging.

Sanchez-Graells, Albert, Regulatory Substitution between Labour and Public Procurement Law: The EU's Shifting Approach to Enforcing Labour Standards in Public Contracts (April 25, 2017). Available at SSRN: https://ssrn.com/abstract=2958297.

Competition and State Aid Implications of ‘Public’ Minimum Wage Clauses in EU Public Procurement after the Regiopost Judgment

This chapter assesses the use of public procurement to enforce labour standards from a competition and State aid perspective, and concentrates on the establishment of contract compliance clauses under the rules of Article 26 of Directive 2004/18/EC and Article 70 of Directive 2014/24/EU and in relation with the Posted Workers Directive. In particular, it assesses the case law of the European Court of Justice in Rüffert, Bundesdruckerei and RegioPost from an economic perspective. This highlights the potential negative competitive implications that derive from the asymmetrical rules the case law creates for the cross-border and the inter-regional provision of services to the public sector. It also underlines the risk of (regional) economic protectionism that they create. The chapter then assesses these issues from the perspective the EU public procurement, competition and State aid rules. It concludes that, given the current ineffectiveness of the checks and balances theoretically oriented towards the prevention of these undesirable effects, contracting authorities and policy makers would be well advised to abandon their efforts of setting partial, incomplete and difficult to monitor minimum/living wage requirements for public contracts only.

Sanchez-Graells, Albert, Competition and State Aid Implications of ‘Public’ Minimum Wage Clauses in EU Public Procurement after the Regiopost Judgment (April 25, 2017). Prepared for future publication in A Sanchez-Graells (ed), Smart Public Procurement and Labour Standards—Pushing the Discussion after RegioPost (Bloomsbury-Hart). Available at SSRN: https://ssrn.com/abstract=2958296.

Interesting case on the boundaries of the in-house exemption from the EU public procurement rules (C-567/15)

In his Opinion of 27 April 2017 in LitSpecMet, C-567/15, EU:C:2017:319, Advocate General Campos Sánchez-Bordona has addressed a complicated issue concerning the boundaries of the in-house exemption from compliance with the EU public procurement rules. AG Campos' Opinion is based on the 2004 Directives, but his views and the ECJ's ruling in LitSpecMet will be relevant for the interpretation of the 2014 Public Procurement Package (in particular, in relation to procurement derived from transactions covered by Art 12 Dir 2014/24, Arts 28-30 Dir 2014/25, and Arts 13-14 & 17 Dir 2014/23).

Differently from other cases, where the in-house exception was assessed in relation to contracts awarded within the 'public house', LitSpecMet concerns a question on the obligation to comply with procurement rules by 'in-house entities' themselves. And, in particular, the extent of the obligation in situations of relative complexity of control and functional relationships between contracting authorities and their controlled entities, where the controlled entities indirectly contribute to the contracting authorities' role in meeting a need in the general interest that does not have either an industrial or a commercial character. In other words, the LitSpecMet case concerns the boundaries of public procurement obligations for entities pertaining to a corporate conglomerate ultimately controlled by a contracting authority, and which award contracts outside the 'public house'.

In the case at had, the Lithuanian railway company (LG, itself a contracting authority with a public sector mission) fully owned an entity dedicated to the manufacture and maintenance of locomotives and railway carriages (VLRD). At the relevant time, orders from LG accounted for almost 90% of VLRD’s turnover. Therefore, LG and VLRD entered into direct contractual relationships on the basis of the in-house exception to the otherwise applicable obligation to comply with EU public procurement law. In turn, VLRD entered into contracts with third parties in accordance with its own Interim Procurement Regulations, rather than in compliance with Lithuania's Law on Public Procurement (LPP). This legal structure was challenged by LitSpecMet, on the basis that VLRD's procurement should be fully covered by the LPP (as a result of the scope of coverage of the EU rules), regardless of the in-house exemption from which contracts between LG and VLRD benefitted.

The main arguments put forward by LitSpecMet are summarised by AG Campos as follows:

 the ... activity carried out by VLRD falls under general interest, in that it enables LG to ensure provision of the public service for which it is responsible, namely the management of railway infrastructure and the provision of passenger transport. In its view, this activity is not of an industrial or commercial nature, since LG is the only undertaking in Lithuania engaged in it, which means that it can easily operate according to considerations which are not purely economic. To accept that public procurement rules do not apply to VLRD would mean that a contracting authority (LG) would be able to avoid those rules simply by setting up a subsidiary (VLRD) for in-house transactions (para 24, emphasis added).

VLRD and the Lithuanian government oppose this argument on different points, mainly related to the non-transferability of LG's duties to VLRD (paras 26-27). The arguments put forward by intervening Member States are also interesting, with Germany supporting the subjection of VLRD's procurement to the EU rules, while Portugal (and, surprisingly, the European Commission) advocate for the exclusion of VLRD's procurement activities from the EU rules (paras 28-32).

In conceptual terms, the legal dispute can be represented as follows, with the left graph depicting the legal structure adopted by the Lithuanian State, and the right graph depicting the alternative coverage put forward by LitSpecMet:

Ultimately, the issue of whether VLRD (as the in-house entity) is subject to the EU procurement rules depends on the answer to two questions: (a) is VLRD in principle directly covered by the EU rules and (b) is the in-house situation relevant and capable of having the effect of either (i) excluding coverage if VLRD is in principle covered or, conversely, (ii) extending coverage to VLRD despite not being covered in principle? Given that VLRD is not a contracting authority, these questions revolve around the interpretation of the concept of 'body governed by public law'.

At this point, it may be worth recalling that, for the purposes of both the 2004 and the 2014 EU public procurement rules, a 'body governed by public law' is that which meets the three cumulative conditions of: (a) being established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; (b) having legal personality; and (c) being financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law; or being subject to management supervision by those authorities or bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.

AG Campos stresses that it is commonly accepted that "VLRD satisfies the second and third: it has legal personality and it cannot be disputed that another body governed by public law (LG) has a role in its financing, the supervision of its management or the composition of its administrative, managerial or supervisory board" (para 38). Therefore, he proceeds to the analysis of the first condition in two parts, by first assessing the boundaries of the requirement of directly (or indirectly) meeting needs in the general interest, not having an industrial or commercial character (paras 37-59); and then proceeding to a more specific assessment of these conditions where the meeting of needs in the general interest, not having an industrial or commercial character, takes place in the context of in-house transactions (paras 60-84).

directly (or indirectly) meeting needs in the general interest, not having an industrial or commercial character

Concerning the first aspect, of whether an indirect contribution to meeting needs in the general interest not of an industrial or commercial nature, I find AG Campos' analysis interesting in that he stresses that the

... the key factor in answering the question is not so much the public nature of the need to be met but the conditions in which this is done. When interpreting the expression ‘needs in the general interest, not having an industrial or commercial character’ it is essential to ascertain on what terms these are to be met.
... according to the spirit of the procurement directives, what is important is to safeguard competition in the market and to prevent it being altered or distorted by participants who do not operate according to free trade principles. Consequently, the determining factor is not whether, by supplying goods and services to LG, VLRD is itself meeting a need in the general interest, or whether it does so indirectly, but whether, in either case, [VLRD] is operating under the same conditions as any private competitors, that is to say, without incentives to offer unfair advantages to national producers.
... for these purposes it is necessary to take into account multiple legal and factual circumstances, amongst which the Court of Justice has mentioned, by way of example, the circumstances prevailing when the body concerned was formed and matters such as ‘the fact that it does not aim primarily at making a profit, the fact that it does not bear the risks associated with [its] activity, and any public financing of the activity in question’. (paras 54-56, emphasis added and reference omitted).

This is largely in line with the clarification that recital (10) of Directive 2014/24/EU sought to introduce by establishing that "a body which operates in normal market conditions, aims to make a profit, and bears the losses resulting from the exercise of its activity should not be considered as being a ‘body governed by public law’ since the needs in the general interest, that it has been set up to meet or been given the task of meeting, can be deemed to have an industrial or commercial character." It is also substantively aligned with the exemption from the utilities procurement rules for entities exposed to competition (Art 35 Dir 2014/25, and previously Art Dir 2004/17). Therefore, this logic seems to carry significant weight and to match adequately the tests applicable in other parts of the EU public procurement system.

The only difficulty with this test is that it has elements that may conflate two of the conditions in the definition of a body governed by public law, in particular where the third condition is met due to the entity being 'financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law'. Therefore, in applying this test, it would be particularly relevant to take into account that it will be almost impossible to establish that the in-house entity is not a body governed by public law because, by the fact of having to derive at least 80% of its turnover from its activities with its controlling entity or entities, it will hardly be in the situation of operating in normal market conditions.

In my view, the sole fact that the controlling entities are directly awarding contracts to the in-house entity without having to comply with the procurement rules suffices to exclude a consideration that those entities are actually exposed to the vagaries of the market (to use the expression from the field of concessions contracts) because they have a captive demand from the controlling entities--which significantly insulates them from market risk where such demand is enough to absorb 80% of the entities' turnover. Ultimately, then, either there is an exemption at the level of the relationship between the contracting authority and the in-house entity, or there is an obligation to tender at that level (which then frees the otherwise in-house entity from public procurement duties). But, either way, the logic of exposition to competition in the market does not allow for both exclusions.

meeting needs in the general interest in the in-house context

From a different but not unrelated perspective, AG Campos also engages in an assessment of the relationship between these VLRD and LG to determine "whether the former is a proxy entity of the latter (or its own resource) which can use the ‘in-house exemption’ ... [by] analysing the substantive issue from an organic perspective as opposed to the perspective of the activity" (para 60). In that regard, he considers that it is necessary to make a

... distinction between ‘marginal’ activities and the ‘essential’ activities of proxy entities which justify the application of the in-house exemption. ... in relation to [marginal] activities the undertaking is operating within the market and can compete on an equal footing with rival economic operators.
... the same is not true of the ‘essential’ tasks which have been entrusted or assigned to the subordinate undertaking by the contracting authority under the in-house system. Where in order to carry out those tasks the undertaking (VLRD in this case) needs to obtain goods, services or supplies from third parties to a value which exceeds the level for harmonised procurement, then the public procurement directives apply.
Any other interpretation would give rise not only to inconsistency but to a potential circumvention of the law; the former because it would be inconsistent with the single effective identity of the two bodies, which was acknowledged for the purposes of exempting them from procurement procedures when dealing with each other, and the latter because it would make it easy to escape the application of the EU public procurement rules (paras 75 to 77, reference omitted).

I am not sure I fully understand the distinction between 'marginal' and 'essential' activities that AG Campos is proposing and, for the reasons above, I do not think it arguable that the in-house entity carries any activities in the market under normal conditions. However, this does not seem to be determinative of his analysis, as AG Campos more clearly states that

In other words, the contracting authority can make use of proxy entities, within the limits already mentioned, by entrusting them with particular tasks which should, in principle, be subject to public procurement procedures but which are exempted. This exception is not, of itself, open to question, legally speaking, in the light of the case-law of the Court of Justice (and, now, Article 12(1) of Directive 2014/24). However, where such proxy entities do not have the resources needed to themselves carry out the tasks assigned by the contracting authority and are obliged to have recourse to third parties in order to do so, the reasons for relying on the in-house exemption disappear and what emerges is actually a hidden public (sub-)procurement where the contracting authority, through an intermediary (the proxy entity) obtains goods and services from third parties without being subject to the directives which should govern the award.
... if the connection between LG and VLRD is such as to justify the application of the in-house exemption to transactions between them, then the external transactions that are essential to the performance of the tasks entrusted to VLRD by LG cannot avoid being caught by the procurement directives (provided they are in excess of the relevant value threshold). Otherwise, simply by reorganising the activities of LG through the establishment of VLRD, LG would be able to avoid the consequences that flow from its status as a contracting authority (paras 79 and 81, emphasis added).

This seems the appropriate functional approach and is completely aligned with the considerations made above in relation with the exposition of the activities of the in-house entity to the vagaries of the market. Therefore, I think that the two prongs of the substantive assessment proposed by AG Campos lead to the same conclusion: that the in-house exemption can only be used once, or that it is exhausted at the first step of avoiding access to the market (except in cases where the in-house entity has, in a complex public house infrastructure, the possibility of entrusting works or services to another, second-tier in-house entity).

Therefore, I hope that the ECJ will follow the approach outlined by AG Campos and confirm that, in simple terms, nobody can have two bites of the in-house cherry.

ECJ stresses flexibility for subcontracting and teaming in the 2014 EU Public Procurement Package (C-298/15)

In its Judgment of 5 April 2017 in Borta, C-298/15, EU:C:2017:266, the European Court of Justice (ECJ) largely followed the Opinion of AG Sharpston (commented here) and ruled on the incompatibility with EU law of a national rule that partially prohibited subcontracting by establishing that, where subcontractors are relied on for the performance of a public works contract, the tenderer is required to perform itself the main works, as defined by the contracting entity.

The ECJ also established that, even if there can be good reasons to ensure a correspondence between the parts of the works to be carried out by the members of a joint bid and their individual professional, technical and economic standing, EU procurement law is not compatible with a rule that imposes an arithmetic correspondence between the contribution of each of the tenderers and the share of the works that that tenderer undertakes to perform if the contract is awarded.

This is an interesting Judgment because it assesses issues around subcontracting and reliance on third party capacities in the area of utilities procurement and by reference to general free movement provisions in the TFEU. In my view, the line of reasoning followed by the ECJ in Borta offers good indications of the way in which subcontracting and teaming provisions in the 2014 EU Public Procurement Package will be interpreted.

The following is a summary of the reasons provided by the ECJ to determine the incompatibility with EU law of rules prohibiting subcontracting the main works involved in any project (a), as well as those requiring arithmetic correspondence between share of professional, technical (and economic) capacity and share of works to be carried out by members of a joint tender (b). A few common trends and future challenges are identified by way of conclusion (c).

It is worth noting that the ECJ also assessed issues concerning the modification of the tender documents after their publication in the light of the fundamental rules and general principles of the TFEU, among which are the principles of non-discrimination and equal treatment and the obligation of transparency which derive, in particular, from Articles 49 and 56 TFEU (see paras 62-77). However, those issues are not discussed in this post.

(a) Flexibility for subcontracting

The ECJ assessed the compatibility with Arts 49 and 56 TFEU of a national procurement rule prohibiting the subcontracting of the 'main works' in a project, as defined by the contracting authority. The ECJ determined that such a measure " is liable to prohibit, impede or render less attractive the participation of economic operators established in other Member States in the award procedure or the performance of a public contract..., since it prevents them either from subcontracting to third parties all or part of the works identified as the ‘main works’ by the contracting entity, or from proposing their services as subcontractors for that part of the works" (para 49).

Once the restriction on free movement was established, the ECJ proceeded to assess its possible justification. To that end, the ECJ considered the reasons given for the adoption of this rule, which mainly intended to "ensure that the works are properly executed" and was, more specifically, aimed at "preventing a current practice which consists in a tenderer claiming to have professional capacities solely in order to win the contract concerned, not with the intention of performing the works itself, but of entrusting all or most of those works to subcontractors, a practice which affects the quality of the works and their proper performance. Second, by limiting the reliance on subcontractors to works identified as ‘subsidiary’, [the rule aimed] to encourage the participation of small and medium-sized undertakings in public contracts as joint-tenderers in a group of economic operators rather than as subcontractors" (para 52). The ECJ dealt with these are three grounds for justification.

  1. The ECJ accepted that aiming to ensure the proper execution of the works is a legitimate goal, but considered the measure disproportionate. Both because it "applies whatever the economic sector concerned by the contract at issue, the nature of the works and the qualifications of the subcontractors. Furthermore, such a general prohibition does not allow for any assessment on a case-by-case basis by that entity" (para 55); and because it prohibits subcontracting "in situations in which the contracting entity is able to verify the capacities of the subcontractors concerned and to take the view, after that verification, that such a prohibition is unnecessary for the proper execution of the works having regard, in particular, to the nature of the tasks that the tenderer plans to delegate to those subcontractors" (para 56). The existence of less restrictive measures also contributed to this finding of disproportion (para 57).
  2. The ECJ did not make an explicit finding on the legitimacy of aiming to prevent 'front tendering' and subsequent subcontracting of most of the contract (which can be assumed to be a legitimate goal), but established that the measure is not suited and/or disproportionate to that goal because "it prohibits the tenderer from delegating the performance of all the works identified as the ‘main’ works by the contracting entity, including the tasks which represent, proportionally, only a small part of those works. Therefore, that provision goes beyond what is necessary to prevent the abovementioned practice" (para 58).

  3. The ECJ finally accepted that, as a matter of principle, it is conceivable that "the encouragement of small and medium-sized undertakings to participate in a contract as tenderers rather than subcontractors" can, "in certain circumstances and under certain conditions, constitute a legitimate objective" (para 59). However, it found no evidence that this was the case in the specific situation.

Therefore, having rejected all possible justifications, the ECJ determined that "Articles 49 and 56 TFEU must be interpreted as precluding a provision of national law ... which provides that, where subcontractors are relied on for the performance of a public works contract, the tenderer is required to carry out the main works itself, as defined by the contracting entity" (para 61).

(b) Flexibility for (asymmetrical) joint tendering

The ECJ assessed a second substantive issue concerning joint tendering and, in particular, the imposition of the requirement that "in circumstances in which a common tender is submitted by several tenderers, ... the contribution of each of them in order to satisfy the requirements applicable with regard to professional capacities corresponds proportionally to the share of the works they will actually carry out if the relevant contract is awarded to them" (para 78).

It is interesting to note that, despite the inapplicability of the 2004 Utilities Directive to the award of the contract (which was below thresholds), the ECJ assessed the compatibility of such requirements with the Directive because the domestic law had made "those provisions have ... applicable ... in a direct and unconditional way" and did that "in order to ensure that internal situations and situations governed by EU law are treated in the same way" (see paras 33-34). Therefore, the ECJ's analysis was carried out "in the light of Article 54(6) of Directive 2004/17" (para 84) and is thus relevant for the future interpretation of Art 78 of Directive 2014/25--as well as, I would argue, Art 58(4) of Directive 2014/24.

I also find it interesting to note that the ECJ sets out the general framework for assessment by reference to the recent Judgment in PARTNER Apelski Dariusz, C-324/14, EU:C:2016:214 (for discussion, see here) and in the following terms (paras 85-86): 

  • EU public procurement law "recognises the right of every economic operator, where the contracting entity lays down a qualitative selection criterion consisting of requirements relating to technical or professional abilities, to rely for a particular contract upon the capacities of other entities, regardless of the nature of the links which it has with them, provided that it proves to the contracting authority that it will have at its disposal the resources necessary for the performance of the contract"
  • "that right extends to groups of economic operators submitting a common tender, which may, under the same conditions, rely on the capacities of their participants or of other entities."
  • EU public procurement law "does not preclude the exercise of the right ... from being limited in exceptional circumstances".

The ECJ recognises that restrictions on the possibility to rely on third party capacities could be justified on the need to "avoid the situation in which, in order to win the contract, a tenderer relies on capacities that he does not intend to use or, conversely, that a tenderer may be awarded a contract and perform part of the works without having the capacities and resources necessary for the proper performance of those works" (para 90).

However, , the ECJ ends up concluding that (paras 92-94):

  • the clause that requires "an arithmetic correspondence between the contribution of each of the tenderers concerned to satisfy the requirements applicable with regard to professional capacity and the share of the works that that tenderer undertakes to perform and that it will in fact perform if the contract is awarded", however, "does not take account of the nature of the tasks to be carried out or to the technical capacities specific to each of them" and, consequently, "does not prevent one of the tenderers concerned from carrying out specific tasks for which it does not in fact have the experience or capacities required".
  • Furthermore, if subcontracting of some ('subsidiary') works is possible and the professional capacities of the subcontractors are not verified (which is for the referring court to ascertain), then the requirement "does not guarantee that the tenderers will actually use the capacities that they have declared in the procurement procedure and which were taken into consideration" by the contracting authority; and "it does not prevent works defined as ‘subsidiary’ from being carried out by subcontractors without the professional capacities required".
  • Ultimately, then, the requirement is not appropriate to ensure the attainment of the objectives pursued.

(c) Common trends and future challenges

Taken together with previous case law in the area of exclusion, qualitative selection and subcontracting--such as Ostas celtnieks, Partner Apelski Dariusz and Wrocław — Miasto na prawach powiatu, the Borta Judgment seems to reaffirm an approach whereby the ECJ is pushing against general rules excluding or restricting teaming and subcontracting, as well as aiming to ensure that, where the contracting authority engages in a case-by-case analysis of the economic operators' capabilities, this is guided by a (strict?) proportionality assessment. In general, this should be a welcome (pro-competitive) direction of development of the case law.

However, the evil is in the detail and there are emerging issues that will require further fine tuning, such as:

  • the extent to which the contracting authority can engage in a substantive assessment of the economic operators' teaming or subcontracting arrangements prior to the award of the contract (cf Partner Apelski Dariusz and Ostas celtnieks), as well as the consequences of disputes concerning post-award structuring of their legal or functional relationships; or
  • the technical reasons that can justify a prohibition to subcontract specific parts of the work or service (see Wrocław and Borta, but also Hörmann Reisen), in particular where the economic operators have assumed joint and several liability and/or have furnished extensive insurance to the contracting authority; or 
  • the extent (and practicalities) of the integration of competition law considerations in the assessment of teaming and subcontracting arrangements by the contracting authorities (eg to avoid situations such as those raised by MT Højgaard and Züblin.

Overall, it seems fair to say that the case law and new rules on exclusion, qualitative selection and subcontracting raise significant practical challenges and that contracting authorities will need to treat lightly (and document extensively) the reasons why they create restrictions on teaming or subcontracting, as well as be ready to provide reasons for these decisions with a view of their administrative or judicial review (specially after the Marina del Mediterráneo Judgment).

ECJ extends justiciability of procurement infringements: No need to review the Remedies Directive? (C-391/15)

In its Judgment of 5 April 2017 in Marina del Mediterráneo and Others, C-391/15, EU:C:2017:268, the European Court of Justice (ECJ) issued another preliminary ruling on the scope of the Remedies Directive. The case required clarification on the concrete type of decisions that interested tenderers can challenge under the Remedies Directive.

In particular, the case sought clarification on whether the review procedures mandated by Art 2(1), and applicable to "decisions taken by the contracting authorities" (as per Art 1(1) Remedies Directive), had to allow a tenderer to challenge a decision by which the contracting authority allowed another economic operator to submit a tender in a public procurement procedure. That is, whether the Remedies Directive created standing to challenge exclusion and selection decisions that concerned other tenderers.

This issue can be seen as controversial because there are two ways in which the analysis can be framed. Firstly, it can be considered that a decision not to exclude (or to select) a competing tenderer does not necessarily produce adverse legal effects for other tenderers--and, consequently, there are no subjective rights to be protected at this stage. Secondly, and to the contrary, it can be considered that a decision that determines the number of competing tenderers among which the contracting authority needs to choose the awardee of the contract produces legal effects on all tenderers involved--and, consequently, there can be (soft?) subjective rights meriting protection both in decisions to exclude (vis-a-vis the excluded tenderer) and not to exclude (vis-a-vis all other tenderers).

The first approach to this issue would be closer to a strict interpretation of the procedural rights implicit in the participation in a procurement process--ie that unless a decision makes it impossible for a tenderer to continue its participation in the tender, there is no decision for which revision it has a legitimate interest / legal standing. The second approach is probably closer to a substantive interpretation of those same procedural rights, as well as supportive of a system of private oversight of compliance with (EU) public procurement law through private actions, where challenges on the basis of the illegality of exclusion and selection decisions are easier to accommodate.

In Marina del Mediterráneo, the relevant Spanish rules followed the first approach, and determined that: "the following acts may be the subject of the application [for judicial review]: (a) Contract notices, specifications and contractual documents laying down the conditions which will govern the procurement procedure; (b) Preparatory acts adopted in the tendering procedure, provided that they decide, directly or indirectly, the award of the contract, make it impossible to continue the procedure or to put up a defence, or cause irreparable harm to legitimate rights or interests. Acts of the procurement board which decide to exclude tenderers will be considered preparatory acts which make it impossible to continue the procedure; (c) Award decisions adopted by the contracting authorities" (C-391/15, para 11, emphasis added).

Thus, under Spanish law, a decision to exclude a tenderer can be challenged 'there and then' by the excluded tenderer, but a decision not to exclude (or to select) that tenderer can only be challenged by other tenderers at the end of the procedure (ie during standstill) and only on the basis of the illegality of the decision to award the contract to that particular tenderer and/or any of the preparatory acts for that decision. 

Therefore, by challenging the Spanish rule, the preliminary reference fundamentally--but rather implicitly--concerned the extent to which Arts 1(1) and 2(1) of the Remedies Directive can be transposed/interpreted in a way that limits the procurement decisions open to (separate, immediate) review to those that negatively affect the subjective rights of a tenderer (in a narrow construction), or whether those provisions create a catch-all category that makes (virtually) all decisions taken by the contracting authority along the procurement processes susceptible of (separate and particularised) review.

That not absolutely all decisions need to be subjected to the review procedures of the Remedies Directive was suggested on the basis of Commission v Spain (C‑214/00, EU:C:2003:276, para 80), where the Commission challenged the same Spanish rule for failing to ‘allow review to be sought of all decisions adopted by the contracting authorities, including all procedural measures, during the procedure for the award of public contracts’, and the ECJ rejected that maximalist approach on the basis that ‘the Commission has not established that that legislation does not provide adequate judicial protection for individuals harmed by infringements of the relevant rules of [Union] law or of the national rules transposing that law’. This could be seen as a decision purely on the (lack of) evidence adduced by the Commission. However, even if a wider reading of the ECJ decision is adopted to the effect that there may be procurement decisions that do not harm individual rights in a manner that merits (separate, immediate) review, the boundaries of the categories of decisions covered by the Remedies Directive remained all but fuzzy, and the extent to which Arts 1(1) and 2(1) of the Remedies Directive had to be interpreted in a restrictive or an expansive way required clarification.

It is worth stressing that AG Bobek (Opinion of 8 September 2016, C-391/15, EU:C:2016:651) was convinced by the first approach outlined above (ie a restrictive interpretation of the Remedies Directive) because constructing the remedies system "in such a broad and rather limitless way would mean that every single decision, however marginal and ancillary, could be immediately attacked, and the award procedure effectively halted. Yet, ... a reasonable balance must be struck between the different interests at stake in public procurement procedures, namely, the right of access to court and judicial review to challenge aspects of the procedure, on the one hand, and effectiveness of the overall procedure and judicial expediency, on the other" (para 34, footnote ommitted). 

Therefore, in an Opinion that seemingly tried to avoid declaring the necessary justiciability of (every) exclusion and selection decision, invited the ECJ to declare that national procedural rules could avoid subjecting those decision to direct (and specific) review provided that: "(a) the national legislation does not hinder immediate review of preparatory acts that produce adverse legal effects on undertakings; and (b) a plea of illegality of preparatory acts that do not produce adverse legal effects on undertakings, such as a decision to admit a candidate to a tendering procedure, can be made in support of an action against the final decision awarding the contract taken on the basis of those preparatory acts" (para 67) . 

In short, the ECJ disagreed with AG Bobek and found that, where there are allegations that a decision allowing a tenderer to participate in a procurement procedure was adopted in breach of EU public procurement law or the national legislation transposing it, national rules must class such decision among the preparatory acts of a contracting authority which may be subject to an independent judicial review--or, in simpler terms, that exclusion and selection decisions concerning other tenderers are open to the review procedures of the Remedies Directive. the reasons given by the ECJ are primarily that:

[the] broad construction of the concept of a ‘decision’ taken by a contracting authority is confirmed by the fact that Article 1(1) of [the Remedies Directive] does not lay down any restriction with regard to the nature or content of the decisions it refers to. Moreover, a restrictive interpretation of that concept would be incompatible with the terms of Article 2(1)(a) of that directive which requires Member States to make provision for interim relief procedures in relation to any decision taken by the contracting authorities (para 27).

And that:

... although [the Remedies Directive] has not formally laid down the time from which the possibility of review, as provided for in Article 1(1), must be open, the objective of that directive, as referred to in the preceding paragraph, does not authorise Member States to make the exercise of the right to apply for review conditional on the fact that the public procurement procedure in question has formally reached a particular stage ...  the fact that the national legislation at issue ... requires, in all cases, a tenderer to wait for a decision awarding the contract in question before it may apply for a review of a decision allowing another tenderer to participate in that procurement procedure infringes the provisions of [the Remedies Directive] (paras 31 and 34).

In my view, even if there are issues of consistency with previous case law that may require some additional fine tuning, there is no question that the ECJ has taken a very expansive approach to the interpretation of the Remedies Directive on this occasion, and that the thrust of the Marina del Mediterráneo Judgment reflects a wide approach to the provision of procurement remedies.

This puts significant pressure on domestic review procedures to ensure that virtually all decisions taken by a contracting authority can be challenged, and that the challenge is available as soon as possible -- and definitely before the award of the contract because as expressed in the "first and second recitals, [the Remedies Directive] is intended to strengthen the existing mechanisms, both at national and EU levels, to ensure the effective application of the directives relating to public procurement, in particular at a stage when infringements can still be corrected" (para 30). This is particularly relevant in view of the (unnecessary) declaration by the ECJ that "Articles 1(1) and 2(1)(a) and (b) of [the Remedies Directive have direct effect" (para 41), which will provide robust legal foundation to challenges against existing domestic rules on access to review procedures.

This approach is bound to further judicialise public procurement oversight through expanded justiciability of (exclusion, but not only) decisions, and puts renewed pressure on the development of more robust procurement review procedures by the Member States--possibly requiring a reform of the Remedies Directives themselves, as I discuss at length in "'If It Ain't Broke, Don't Fix It'? EU Requirements of Administrative Oversight and Judicial Protection for Public Contracts",  in S Torricelli & F Folliot Lalliot (eds), Administrative oversight and judicial protection for public contracts (forthcoming). In my view, this is not necessarily a blueprint for desirable regulatory reform and more thought needs to go into the balance between public compliance oversight and private enforcement of the EU public procurement rules. However, it seems out of the question that legal reform will be necessary (in Spain and elsewhere) and, in my view, that the European Commission abandoned the revision of the Remedies Directives too quickly.

Are the EU Institutions (about to start) breaching Art 50 TEU & EU public procurement law in the context of Brexit?

The Financial Times has reported that "Brussels starts to freeze Britain out of EU contracts ~ Commission memo tells staff to prepare to ‘disconnect’ UK". According to the FT, an internal European Commission memorandum urges its senior officials to start introducing Brexit considerations in their decision-making, seemingly to avoid “unnecessary additional complications”. As public procurement is concerned, the FT indicates that 

Where legally possible, the [C]ommission and its agencies will be expected in all activities to “take account” of the fact that Britain may be “a third country” within two years, including in appointing staff and in awarding billions of euros of direct contracts for research projects or services.

“Apart from the legal requirement for a contracting party to be established in the EU, there may be political or practical reasons that speak in favour of contracting parties established in a specific member state, not only at the conclusion of the contract, but also throughout the duration of the contract,” the note states.

The FT piece lacks the necessary detail for a full legal assessment and the caveat that this strategy should be undertaken "where legally possible" may well deactivate it [in legal terms]. However, at least in its thrust, this is a rather clear breach of Article 50(3) TEU.

Inasmuch as it states that "The Treaties shall cease to apply to [a withdrawing Member] State ... from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification" (given by the UK on 29 March 2017), unless this period is extended unanimously by the European Council; Art 50(3) TEU does not allow for any anticipatory effects of a decision to withdraw. Until withdrawal and its terms are actually agreed and legally effective, both the withdrawing Member State and the EU Institutions remain bound by EU law in its supremacy, direct effect and the mandate to respect the rule of law (Art 2 TEU). This is an appropriate measure aimed at the preservation of the rule of law in the form of compliance with EU law during the withdrawal negotiations, not least because nobody knows if withdrawal is legally irreversible and unavoidable -- and, quite frankly, every day that goes by without the EU Institutions (as well as the UK) seeking clarification from the Court of Justice of the European Union is a missed opportunity and another blow to the foundations of the rule of law in the EU.

Such prohibition of anticipatory effect goes both in the direction of preventing the 'freeing up' of the withdrawing Member State from compliance with EU law (which is obvious from Art 50(3) TEU itself), as well as in the opposite direction of preventing the EU Institutions from discriminating against the withdrawing Member State. It is clear to me that EU law will always bind the EU Institutions vis-a-vis a withdrawing Member State all the way up to the point of legal withdrawal - and from then onward, the legal regime setting up mutual duties will be that of any transitory arrangements created by the withdrawal agreement, and/or the legal regime governing the "the framework for [the withdrawing Member States'] future relationship with the Union". Violating the absolute mandate of subjection to EU law up to the point of withdrawal would be an infringement of Art 50(3) TEU by the EU Institutions -- if not by itself, certainly in combination with the duty of non-discrimination and equal treatment between Member States of Art 4(2) TEU, as well as the duty of sincere cooperation of Art 4(3) TEU.

In the specific area of public procurement, just as it was illegal for the UK's Department for International Trade to tender contracts screening contractors on the basis of their commitment to support the delivery of Brexit as a cultural fitness criterion (see here), it is also illegal for the EU Institutions to tender contracts on the basis of "political or practical reasons that speak in favour of contracting parties established in a specific member state, not only at the conclusion of the contract, but also throughout the duration of the contract". Article 102 of the Financial Regulation governing the award of contracts by EU Institutions clearly establishes that "All public contracts financed in whole or in part by the [EU] budget shall respect the principles of transparency, proportionality, equal treatment and non-discrimination". Imposing requirements around the Member State of incorporation, registration or sit of a public contractor runs against these general principles.

There may be some specific circumstances or projects (the FT piece mentions the Galileo project) where it would not be possible for public contractors to be based outside the EU, but these are clearly exceptional and need to be subjected to a very strict proportionality analysis. In most cases, particularly for services and research contracts, there is no need for any physical presence in the EU (or elsewhere). This is clearly demonstrated by the coverage of a good number of Brexit-sensitive services markets in the EU's market access concessions under the World Trade Organisation's Government Procurement Agreement (albeit on a reciprocal basis, for obvious trade policy reasons).

Moreover, the extent to which it would be impossible for UK-based contractors to complete the execution of public contracts post-Brexit depends on the existence or not of transitory arrangements, as well as the framework for the future EU-UK relationship (which may well imply mutual coverage of services procurement in WTO GPA terms). Therefore, a decision made now that determined such impossibility and thus served as the basis for the exclusion of UK tenderers from procedures carried out by the EU Institutions would be legally defective.

Beyond these technical issues, it is shocking and worrying to see the EU Institutions engage in what can be seen as trade war by erecting non-tariff barriers against a withdrawing Member State, just as it was worrying and unacceptable to see the UK do that. If both parties to the withdrawing negotiations "prepare" for a disorderly Brexit in this manner, this will be a self-fulfilling prophecy. And the only stopper to such noxious developments is to be found in the rule of law and the EU's and the withdrawing Member States' obligations under the Treaties to comply with EU law until the withdrawal is effective in terms of Art 50(3) TEU. If the European Commission is itself not able to abide in this manner, then my pessimism about the irreversible effects of Brexit on EU law can only plummet even further....