In its Judgment of 10 October 2017 in Solelec and Others v Parliament, T-281/16, EU:T:2017:711 (only available in French), the General Court of the Court of Justice of the European Union (GC) decided one more case concerning the analysis of potentially abnormally low tenders under the 2012 Financial Regulation. Solelec brings in a twist to the previous case law, which derives from the fact that the winning tender was unilaterally 'arithmetically adjusted' by the contracting authority during the award process in a manner that increased its value by approximately 10%. The GC, perhaps surprisingly, took no issue.
This is an area of litigation that has triggered a significant number of recent decisions (see here, here and here), and these are consolidating a two-step approach to the analysis of abnormally low tenders: (i) an initial motu proprio duty for the contracting authority to screen tenders for signs of apparent abnormality without a corresponding duty to explicitly provide reasons when it does not identify those signs (and, alternatively, a duty to start the information-seeking inter partes procedure with the affected tenderer), and (ii) upon allegations by the tenderers, a duty to investigate claims of apparent abnormality, and an interrelated duty to provide sufficient reasons for its findings (one way or the other).
Solelec concerned the second type of duties, as the GC was faced with a case where a disappointed tenderer (Solelec, as part of a consortium, together with Mannelli, Wagner & Socom) challenged the award of a contractual lot to a competing consortium (Muller & Putman), on the basis that (i) the latter's tender was abnormally low and (ii) that Muller & Putman did not meet the applicable qualitative selection criteria. This second line of argument makes the case also partially comparable to Marina del Mediterráneo (see here), concerning the justiciability of allegations of improper assessment of selection criteria concerning competing tenderers. In that regard, in my view, Solelec is another case supporting the need to regulate more clearly pre-litigation procedural phases where undertakings want to challenge qualitative selection decisions concerning themselves or competing tenderers.
In Solelec, the European Parliament rejected Solelec's arguments on the lack of qualification of the Muller & Putman consortium the first time they were submitted on the basis that tenderers are not allowed to contact the contracting authority after the submission of the tenderers and until an award decision is made (see paras 5-6). This is a highly formalistic approach, and one that pushes all such claims to the litigation stage. This is undesirable and, in general, the regulation of a pre-litigation possibility of airing all concerns about qualification would be desirable [see 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 (Bruylant, 2018, forthcoming)].
On substance, firstly and concerning Solelec's claims that Muller & Putman did not meet the required qualitative selection criteria, the GC dismissed the argument that the late deposit of financial statements under domestic law (Luxembourg) can be a cause for a determination of lack of financial or professional standing, in particular if that is not indicated in the tender documentation as an exclusion ground (paras 28-32), it also dismissed a claim that a potential breach of domestic corporate law could lead to exclusion, where that breach would be in the future and susceptible of being remedied by the tenderer concerned (paras 33-45--in the case, the need to extend the period of establishment of a corporate entity), and engaged in a very detailed assessment of claims of inexistence of required references supporting past experiences claims, in a setting where the information that had been disclosed to Solelec had been redacted on the basis of the protection of commercial and business secrets of Muller & Putman (paras 46-106). Part of the latter discussion is particularly interesting in relation with the possibility of remedying incomplete tender documents (à-la-Manova, see paras 60-78).
Secondly, and concerning Solelec's claim that Muller & Putman's tender was abnormally low, the GC discusses the reasons why the fact that the latter offer was 30% lower than Solelec's and almost 13.5% lower than the estimated budget did not necessarily lead to a finding of abnormality (paras 107-164)--much in the same line as in TV1 v Commission, T-700/14, EU:T:2017:35 (see here). Maybe the most interesting point of this part of the Judgment is the one concerned with an upwards 'arithmetical adjustment' of the winning tender carried out by the contracting authority, which increased the offered price of €41.4 million to an award of €45.6 million (paras 150-164). According to the contracting authority, such adjustment resulted 'on the one hand, from the correction of calculation errors and, on the other hand, from the correction resulting from the modification of the quantity of certain activities in the tender form of the successful tenderer, in the course of the tender procedure' (para 154. own translation from French).
Concerning the possibility for the contracting authority to introduce an upwards modification of the volumes of activities included in the original tender form, the GC indicated that the change was acceptable because the need for the adjustment in the volume of activities derived from the fact that, during the period for the submission of tenders, the contracting authority issued a revised scope of works that was presented as a revision of estimated prices, but also included changes in quantities of works.
In the words of the GC
It is certainly true that the successful tenderer [Muller & Putman] drew up its tender on the basis of the first version of the price schedule and that the said schedule was replaced, before the date of submission of the tenders, by a second version which was made available to all bidders through a computer platform. The applicants [Solelec] for their part, drew up their offer on the second version of the price schedule.
It follows that the error to be corrected in the present case results from the fact that the successful tenderer failed to take into account, in its tender, the changes in the quantities of certain services set out in the second version of the price schedule (paras 156-157, emphasis added, own translation from French).
This is certainly a difficult situation, and one where, in the absence of specific rules in the tender documentation establishing the way the contracting authority could proceed to amend the tenders, a unilateral corrective intervention by the contracting authority would not necessarily be beyond reproach. However, in the case at hand, the contracting authority had reserved the right to adjust the content of the tenders received in a limited number of circumstances, including a mention that 'the quantities or other elements of the tender schedule [ie the form according to which all tenders had to be submitted] that are modified by the tenderer will be put back to the state of the tender schedule provided to the tenderers in the tender dossier' (para 158, own translation from French). Or, in other words, the contracting authority indicated that the quantities had to be fixed for all tenderers, and that it would make any required adjustments to the tenders received to that effect.
This led to the GC's assessment that 'there is no reason to conclude that the contracting authority was not entitled to correct the tenderer's tender based on the first version of the schedule in the light of the second version of the schedule ... in order to to allow the award to be made on as good a basis as possible, and in order to improve the comparability of tenders and not to jeopardize the equal treatment of tenderers. The Parliament therefore proceeded lawfully by making this correction in accordance with the power at its disposal', which the GC identifies in the tender documentation (para 160, own translation from French).
In my view, the extent to which this approach in the tender documentation is acceptable and fully compatible with the general principles of procurement law can be controversial (what are the limits on the changes that a contracting authority can unilaterally reserve the right to introduce, and is compliance with an implicit transparency requirement sufficient to legitimise such an approach?). Arguably. it would have been preferable for the contracting authority to foresee in the tender documents the possibility to have contacted the tenderer and given it the opportunity to correct the obvious error (which is in any case allowed by the case law), rather than reserving a right to directly proceed to the correction. Moreover, some more detailed discussion of whether the error was obvious (and why would changes in quantities be possible at all, as the tenderers could have been requested to solely submit unit prices), and whether it corresponded with the grounds for unilateral adjustment of the tenders included in the tender documentation would have been useful (in particular by reference to the Slovensko case law).