Procurement governance and complex technologies: a promising future?

Thanks to the UK’s Procurement Lawyers’ Association (PLA) and in particular Totis Kotsonis, on Wednesday 6 March 2019, I will have the opportunity to present some of my initial thoughts on the potential impact of complex technologies on procurement governance.

In the presentation, I will aim to critically assess the impacts that complex technologies such as blockchain (or smart contracts), artificial intelligence (including big data) and the internet of things could have for public procurement governance and oversight. Taking the main risks of maladministration of the procurement function (corruption, discrimination and inefficiency) on which procurement law is based as the analytical point of departure, the talk will explore the potential improvements of governance that different complex technologies could bring, as well as any new governance risks that they could also generate.

The slides I will use are at the end of this post. Unfortunately, the hyperlinks do not work, so please email me if you are interested in a fully-accessible presentation format (a.sanchez-graells@bristol.ac.uk).

The event is open to non-PLA members. So if you are in London and fancy joining the conversation, please register following the instructions in the PLA’s event page.

Two recent cases on transparency & access to documents in EU Institutional procurement (I) (T-136/15)

1200px-Great_Wave_off_Kanagawa2.jpg

Two recent General Court judgments have addressed different aspects of transparency duties and access to documents requirements in EU Institutional procurement [for discussion, see A Sanchez-Graells, 'Transparency in Procurement by the EU Institutions' (2017)].

The first Judgment of 14 December 2017 in Evropaïki Dynamiki v Parliament (T-136/15, EU:T:2017:915) concerns access to procurement documents under Regulation 1049/2001. The other Judgment of 14 December 2017, and also involving European Dynamics Luxembourg and Evropaïki Dynamiki v Parliament (T-164/15, EU:T:2017:906, not available in English), addresses issues concerning the duty to provide reasons under the applicable (2012) version of the EU Financial Regulation

This post discusses T-136/15, and a follow-up post will discuss T-164/15.

Access to procurement documents under Regulation 1049/2001--
a blow to the almighty presumed protection of business secrets?

As a starting point, it is worth reminding that the Court of Justice (ECJ) has recognised that the protection of business secrets is a general principle applicable in the context of public procurement [Judgment of 14 February 2008, Varec, C-450/06, EU:C:2008:91, paragraph 49; see also Opinion of AG Kokott of 23 September 2010 in Stichting Natuur en Milieu and Others, C-266/09, EU:C:2010:546, paragraph 77], and that the General Court (GC) has accepted that there is general presumption of confidentiality in respect of the bids submitted by tenderers in a public procurement procedure in the event that a request for access is made by another tenderer, in particular on account of the economic and technical information contained in those bids [Judgment of 29 January 2013, Cosepuri v EFSA, T-339/10 and T-532/10, EU:T:2013:38, paragraphs 95 and 101; and Judgment of 21 September 2016, Secolux v Commission, T-363/14, EU:T:2016:521, paragraphs 47 and 49]. However, in this case, the disappointed bidder (European Dynamics) did not seek access to the tenders submitted by its competitors, but to 'all available information concerning all the requests for quotation which were issued by the [Parliament] for all lots' (T-136/15, para 2). This created an opportunity for the GC to reassess the extent of the presumption against the disclosure of documents containing potential business secrets, as the documents did not originate from the bidders, but rather from the contracting authority. The case does not provide much detail, but it seems that the requests for quotations may have been different between themselves, and that European Dynamics wanted to ascertain whether they represented a proper split of the contract into lots.

With this in mind, and given the width of the general presumption against disclosure of documents on the basis of business secrets, it should come as no surprise that, when European Dynamics asked the European Parliament to provide all requests for quotations--and in addition to other arguments for the rejection of such request, including workload implications, public security, personal data and procedural decision-making issues--the Parliament sought to ground its rejection of access on the fact that 'the documents requested contain information of an economic and technical nature, the presentation of which could reveal the Parliament’s profile as a buyer in the market. In addition, the requests for quotation could contain information on the particular skills of the suppliers selected for each lot as well as details of their commercial strategy and alliances or links with third parties. The protection of commercial interests, namely those of the economic actors involved and of the Parliament, also justified, in the view of the Parliament, refusing all access to the documents requested' (T-136/15, para 16). The Parliament also pressed the additional point that 'the ... exceptions to the right of access... were to be regarded as applying to all ... documents by virtue of a general presumption, in accordance with the line of reasoning developed by the Court of Justice in its judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376)' (T-136/15, para 19). Also unsurprisingly, European Dynamics challenged that decision.

In its assessment of this specific aspect of the dispute, the GC found that:

(1) Parliament was generally entitled to rely on presumptions of applicability of the grounds for non-disclosure, as 'the Court of Justice has acknowledged that it is open to the institutions to base their decisions, as regards how granting access might specifically and actually undermine the interest protected by an exception under Article 4 of Regulation No 1049/2001, on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 50; of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 54; of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 74, and of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 65)' (T-136/15, para 47, emphasis added). But the possibility of relying on such presumptions required that 'documents of the same category ... contain the same kind of information. ... only if an exception to the right of access manifestly covers the content of those documents in its entirety ... the institution may avoid undertaking a specific, individual examination of those documents (see, to that effect, judgment of 9 September 2011, LPN v Commission, T‑29/08, EU:T:2011:448, paragraph 114)' (T-136/15, para 48). Thus, a detailed assessment of the applicability of the grounds to the specific type of document was necessary.

(2) Reliance on such a presumption was not justified on grounds relating to (i) protection of public security, (ii) privacy or (iii) the protection of Parliament's decision-making process because not all documents covered by the request for access could be presumed to include information relevant to those issues (see T-136/15, paras 50-60). This left the legality Parliament's rejection of access to documentation dependent on the GC's view on the exclusion from disclosure based on the first indent of Article 4(2) Reg 1049/2001, according to which '[t]he institutions shall refuse access to a document where disclosure would undermine the protection of: ... commercial interests of a natural or legal person, including intellectual property'.

(3) When assessing the applicability of a general presumption of exemption in line with the first indent of Art 4(2) Reg 1049/2001, the GC stressed the different nature of documents covered by European Dynamics' request. Its arguments (even if lengthy) require some close analysis:

as regards requests for quotations, a general presumption that commercial interests would be undermined cannot be based ... on the case-law ... relating to the bids of tenderers ...

... in order to attain the objective of the rules on EU public procurement, which is based on undistorted competition, it is important that the contracting authorities do not release information relating to public contract award procedures which could be used to distort competition, whether in an ongoing procurement procedure or in subsequent procedures ...

... it is recognised in the case-law that the economic and technical information in the tenderers’ bids is such as to justify refusal by the institution concerned to grant access to the bid of the successful tenderer. That is the case in particular where such bids contain details of the specific skills of the tenderers and contribute to the individual nature and appeal of the tenderers’ bids ...

 Having regard to the nature and purpose of a request for quotation drawn up by the contracting authority in performance of a framework contract, it cannot be presumed that such a document contains economic and technical information on the contractor or details its specific skill. On the contrary, its request for quotation, which comes from the contracting authority and not from its contractors, includes as a general rule a description of the tasks which the contracting authority wishes to have carried out under the framework contract which it has signed with the contractor. In principle, it is only in response to that request for quotation that the contractor will provide details on the services which it considers it can provide to the contracting authority, the profile of the experts which it can make available and the cost of its services.

Furthermore, the Parliament cannot argue that the disclosure of the requests for quotation will undermine its own interests, in that disclosure could reveal its ‘purchasing profile’ on the market. In fact, even if disclosure of the relationship between the tasks to be performed and the number of working days necessary to complete them could enable the tenderers, in future public procurement procedures, to unveil the Parliament’s costing technique, the fact that tenderers could know the prices quoted in the past for a corresponding service seems more likely to lead to a situation of genuine competition than to a situation where competition would be distorted (sic) ...

... having regard to the nature of a request for quotation drawn up by the contracting authority in performance of a framework agreement and the objective pursued by the [procurement rules], the Parliament was not entitled to rely on a general presumption that the interests protected by the first indent of Article 4(2) of Regulation No 1049/2001 would be undermined to avoid a specific, individual examination of the documents requested.

A request for quotation includes, in principle, a description of the tasks which the contracting authority wishes to have carried out under the framework contract which it has signed with the contracting party, but also more general information concerning, in particular, the practical management and monitoring of projects, the persons responsible, or the format of the reports to be provided on a regular basis. Thus, it is not established that the disclosure of all the information contained in the documents requested would undermine the commercial interests of the Parliament or of third parties.

... the Parliament could not rely on the exception to the right of access set out in the first indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of commercial interests to refuse to carry out a specific, individual examination of the documents requested and to disclose them (T-136/15, paras 63, 68-72, and 74-75, references omitted and emphases added).

Despite excluding the possibility for the Parliament to rely on the presumptions, the GC recognised the validity of the rejection of the request to access the documents on the grounds that complying with it would have generated an excessive workload for the Parliament (see T-136/15, paras 78-103). Therefore, the documents were not disclosed. However, in my view, the approach to the applicability of the presumption of confidentiality to requests for quotations within framework agreements undertaken by the GC in its Evropaïki Dynamiki v Parliament Judgment (T-136/15) is faulty.

Critical comments

Indeed, there are two issues that require particular criticism because, in my view, the GC improperly assessed them.

First,  the GC seems to misinterpret the extent to which a request for quotations within the context of a framework agreement is likely to contain commercially-sensitive information, and errs on the side of presuming excessive neutrality or homogeneity in those requests. In my view, thus, the GC gets it wrong when it considers that '[i]n principle,it is only in response to [a] request for quotation that the contractor will provide details on the services which it considers it can provide to the contracting authority, the profile of the experts which it can make available and the cost of its services' (T-136/15, para 70). This is a reasoning that implicitly establishes the wrong functional equivalence between a call for tenders prior to the award of a public contract (including framework agreements) and a request for quotations within the context of a framework agreement. Given that the award decision (based on the previous tender) would already have established details of the services covered by the concluded framework, the GC gets the general principle backwards in ignoring that each of the requests for quotation would have been different and based on the peculiarities of each contractor's prior offer--otherwise, why would Parliament have issued over 1,000 (different) requests for quotation, and why would European Dynamics be interested in having access to them?

Indeed, given that award of the framework agreement (or, to be more precise, the placing of a contractor in a specific position in the cascade mechanism within the framework, as in the case at hand) results from the previous tender successfully submitted by the interested economic operator--and that, consequently, not all contractors included in the framework agreement would have been included under homogeneous conditions--in my view, the requests for quotations are more likely than not to include details of the previous tender that can be easily 'reverse-engineered' by their competitors. Thus, the protection given by the presumption of confidentiality to the original tender needs to carry through to requests for (more specific) quotations on its basis, so as to avoid such risk of leakage of commercially-relevant information. By taking a different approach, the GC has created a potential negative erosion of the presumption of protection of commercially-sensitive information in the context of EU Institutional procurement where framework agreements are involved. In my view, this is undesirable and the GC's position should be challenged.

Second, the GC's complementary position that 'the fact that tenderers could know the prices quoted in the past for a corresponding service seems more likely to lead to a situation of genuine competition than to a situation where competition would be distorted' (T-136/15, para 71) makes no economic sense, in my opinion. Given that what is presented as information on "past pricing" would, in the case at hand, have concerned "contemporaneous pricing", and that it would be disclosed within such a closed competitive setting as a framework agreement, economic theory predicts anticompetitive effects and a heightened risk of collusion [for discussion, generally, see K-M Halonen, 'Disclosure Rules in EU Public Procurement: Balancing between Competition and Transparency’ (2016) 16(4) Journal of Public Procurement 528; A Sanchez-Graells, ‘The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives’ (2013) Univ. of Leicester School of Law Research Paper No. 13-11]. By failing to take that risk into account, and starting to consolidate a jurisprudential position that revelation of past pricing information is pro-competitive, the GC is following the wrong functional approach. This, too, I would like to see challenged and changed.

reasons for the deduction of points at tender evaluation must be fully disclosed to their last detail: AG MENGOZZI ON DUTY TO MOTIVATE PROCUREMENT DECISIONS (C-376/16 P)

AG Mengozzi has put pressure on the Court of Justice (ECJ) to continue pushing for excessive transparency in the context of procurement litigation. On this occasion, the AG has invited the ECJ to establish an extremely stringent requirement for the disclosure of detailed comparisons of the evaluation reports to the level of award sub-criteria, without assessing the extent to which the contracting authority can have legitimate reasons to withhold parts of the evaluation.

In my view, this approach would create significant imbalances between the duty to provide reasons to disappointed tenderers and the duty to preserve competition for public contracts and sufficient protection of business and commercial information, which is problematic [for discussion, see K-M Halonen, 'Disclosure Rules in EU Public Procurement: Balancing between Competition and Transparency’ (2016) 16(4) Journal of Public Procurement 528; A Sanchez-Graells, ‘The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives’ (2013) Univ. of Leicester School of Law Research Paper No. 13-11]. Therefore, I argue that the ECJ should deviate from the Opinion of AG Mengozzi in its final Judgment in this case.

It is worth noting that the case is subjected to a previous version of the procurement rules in the EU Financial Regulation, but the ECJ's Judgment will be more generally relevant, both in the context of the current Financial Regulation controlling EU Institutional procurement and, more generally, for procurement controlled by the rules in the 2014 EU Public Procurement Package.

The AG Opinion

In his Opinion of 28 September 2017 in case EUIPO v European Dynamics Luxembourg and Others, C-376/16 P, EU:C:2017:729, AG Mengozzi has once more attempted a delineation of the obligation to state reasons for a decision to reject a tender and, in particular, "with regard to the correlation between the specific negative assessments set out in the evaluation report and the deductions of net points made by the contracting authority" (para 19). Or, in other words, AG Mengozzi has indicated the way in which the case law of the Court of Justice (ECJ) on the duty to provide justifications in the context of procurement debriefing applies to the reasons for the deduction of points on the basis of negative judgements of the evaluation committee [for general discussion of this obligation, see A Sanchez-Graells, “Transparency in Procurement by the EU Institutions”, in K-M Halonen, R Caranta & A Sanchez-Graells (eds), Disclosure Rules within Public Procurement Procedures and During Contract Period, vol 9 EPL Series (Edward Elgar, forthc.)].

This point of law was raised by EUIPO against the previous finding of the General Court (GC) that, despite the fact that contracting authorities are not required to provide unsuccessful tenderers with a detailed summary of how each aspect of their tenders was taken into account for its evaluation, however,

when the contracting authority makes specific assessments as to the manner in which the tender in question fulfils or otherwise [award] criteria and sub-criteria, which are clearly relevant to the overall score of the tender, the duty to state reasons necessarily includes the need to explain how, in particular, negative assessments gave rise to the deduction of points (Judgment of 27 April 2016 in European Dynamics Luxembourg and Others v EUIPO, T-556/11, EU:T:2016:248, para 250).

In the specific case, the GC considered it particularly important because the evaluation method included relative measures, so that "any deduction of net points in respect of certain sub-criteria automatically resulted, under the formula applied by the contracting authority, in the increase in the number of gross points to be allocated to the successful tenderers’ tenders in respect of their technical quality" (AGO C-376/16 P, para 24 & T-556/11, para 251).

The circumstances of the case where such that EUIPO disclosed the overall score for each of the three technical or qualitative criteria used in tender evaluation, but not the detailed breakdown for each of the award sub-criteria taken into consideration by the evaluation committee. In those circumstances, the GC found that "it was impossible, both for [the disappointed tenderer] and for the Court, to understand the calculation or precise breakdown of the points deducted for each sub-criterion, or even for each of the sub-points, and that it was therefore also not possible to verify whether and to what extent those deductions actually corresponded to the negative assessments made in the evaluation report and, accordingly, whether they were justified or not, or, at the very least, sufficiently plausible" (AGO C-376/16 P, para 26 & T-556/11, para 252).

EUIPO opposed that finding, and the more general point of law made by the GC, on the basis that neither the applicable rules, nor the case law of the CJEU required the debriefing information provided to a disappointed tenderer to include a demonstration of "which negative comment led to which deduction of points for each specific sub-criterion or sub-point" (AGO C-376/16 P, para 28 - for details of the reasons, see paras 29-31).

Thus, the main point of contention concerns the limits of the duty to disclose details of the evaluation process and report. Or, as AG Mengozzi put it, the question is "in essence, whether the [GC] was right in holding that the decision to reject the tender did not satisfy the requirements to state reasons stemming from [the applicable rules], as interpreted by the case-law, or whether the [GC] applied an overly strict test compared with the aforementioned provisions and the relevant case-law of the [ECJ]" (AGO, C-376/16 P, para 32). 

After a short restatement of the ECJ case law on the limits of the obligation to provide reasons and disclose relevant parts of the evaluation report, and despite stressing that "the contracting authority [is not] under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report" (AGO, C-376/16 P, para 36), in short, AG Mengozzi has invited the ECJ to establish that the right disclosure standard is one where

(i) the extracts of the evaluation reports disclosed by the [contracting authority] [make] it possible to deduce the number of points obtained by the appellant in question in comparison with the successful tenderer, broken down each time for each sub-criterion, and the weight of each sub-criterion in the overall evaluation, and (ii), the comments of the evaluation committee which [are] disclosed [explain], for each award criterion, on the basis of which sub-criteria the [contracting authority] had found the tender of the successful tenderer or that of the appellant in question to be the best (AGO C-376/16 P, para 47, emphases in the original).

AG Mengozzi suggests that this would have already been implicitly established in the Judgment of 4 October 2012 in Evropaïki Dynamiki v Commission, C-629/11 P, EU:C:2012:617, para 11, where the circumstances of the case reflected this level of disclosure.

Criticism

In my view, this is not an adequate test.

First of all, I struggle to see where the boundary lies between having to disclose the evaluation report in full and having to provide an absolutely broken down comparative assessment of the evaluation of the disappointed tenderers' tender and that of the preferred tenderer. To be fair, the previous case law is riddled with such tensions and it is difficult to establish clear boundaries on the obligation to disclose information contained in the evaluation report. However, in my view, the step taken by AG Mengozzi (and previously by the GC) comes to nullify the general (minimum) safeguard that contracting authorities are not required to disclose the evaluation report in full.

Secondly, I am not sure that in the assessment of these issues enough consideration is given to the fact that the relevant rules allow contracting authorities not to disclose certain details where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings. In my view, there is a clear case to be made for restricting the level of disclosure of the points given to competing tenderers to a level of generality (eg award criteria rather than sub-award criteria) that strikes a balance between allowing for the review of the procurement decision while preserving competing interests. If the case law of the ECJ develop in the direction suggested by AG Mengozzi, it will be almost impossible for contracting authorities to protect legitimate interests in the context of procurement, and this will have chilling effects on participation.

Third, such a test would potentially make sense in terms of disclosure between the contracting authority and the review body or court, but not in relation to the disappointed tenderer. It would make much more sense to allow for disclosure limited to the level of award criteria at debriefing stage and, only in case the disappointed tenderer is not satisfied and launches an administrative or judicial review, for that information to be released to the review body of court, with stringent rules on access to that confidential information (for example, along the lines of the guidelines recently adopted in England). In the absence of this differential access to sensitive information, the adoption of the test proposed by AG Mengozzi is excessive and creates structural risks for abuse and competitive distortions--which makes it an undesirable test.

On the whole, I think that this Opinion and the previous decision by the GC show that the logic and operation of the rules on disclosure of information in the context of procurement litigation require a careful reassessment. In a case such as this one, where the record shows that EUIPO made significant efforts to disclose information to the disappointed tenderer, while still (maybe implicitly) aiming to protect sensitive information, the imposition of higher levels of disclosure obligations seems to me excessive. Once more, this militates in favour of the regulation of specific procedural steps to assess issues of confidentiality and, in particular, the need to create some asymmetrically opaque review mechanisms that allow for proper scrutiny of procurement decisions in a way that does not jeopardise competition in the market or anyone's legitimate business and commercial interests.

 

CJEU backs automatic exclusion of tenderers that had relied on no longer qualified third parties (C-223/16)

nablo-eggs.jpg

In its Judgment of 14 September 2017 in Casertana Construzioni, C-223/16, EU:C:2017:685, the Court of Justice of the European Union (CJEU) has confirmed the legality of the automatic exclusion of an economic operator that had relied on the capacities of an auxiliary undertaking, where the latter lost the required qualifications after the submission of the tender. The CJEU has ruled that the relevant provisions of Directive 2004/18/EC (Arts 47(2) and 48(3)) did not preclude such automatic exclusion, and that they did not require offering the concerned tenderer the possibility to replace the now not-qualifying auxiliary undertaking.

In doing so, the CJEU has followed the Opinion of Advocate General Wahl (criticised here), and created a precedent that is at odds with the new rules in Directive 2014/24/EU (Art 63) and that raises new interpretive difficulties. This post will first rehearse the main reasons why AG Wahl's and now the CJEU's approach is criticisable. It will then look into the interpretive difficulties that can carry through to the interpretation of Article 63 of Directive 2014/24/EU.

Not necessarily a proportionate or pro-competitive approach

In a nutshell, the reasons given by the CJEU to accept the automatic exclusion of a tenderer that relied on the capacities of an auxiliary undertaking that disappear once the offer has been submitted are the same as those of AG Wahl, and are summarised by the CJEU as follows:

as the Advocate General observed ..., the possibility afforded, unpredictably, exclusively to a consortium of undertakings to replace a third-party undertaking which belongs to that consortium and has lost a qualification that is required in order not to be excluded would amount to a substantial change of the tender and the very identity of the consortium. Indeed, such a change of the tender would compel the contracting authority to carry out new checks whilst at the same time granting a competitive advantage to that consortium which might attempt to optimise its tender in order to deal better with its competitors’ tenders in the procurement procedure at issue.

Such a situation would be contrary to the principle of equal treatment which requires that tenderers be afforded equality of opportunity when formulating their bids and which implies that the bids of all tenderers must be subject to the same conditions, and would amount to a distortion of healthy and effective competition between undertakings participating in a public procurement procedure (C-223/16, paras 39-40, emphasis added).

This encapsulates three reasons: (i) discrimination because one consortium is given the opportunity and other tenderers are not, (ii) discrimination because the beneficiary consortium can substantially alter the terms of its tender, and (iii) additional work for the contracting authority. In my opinion, the first reason is spurious because the opportunity to substitute would only arise where a consortium is affected by the loss of qualification of one of its auxiliary undertakings and, barring a case where two or more competing consortia found themselves in that predicament, there is no discrimination for allowing substitutions on a need basis.

The second reason is equally unpersuasive, in particular because it conflates the strict issue of substitution of the member of a consortium with the separate problem of changes to the content of the tender. As I said in relation to AG Wahl's Opinion, 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 (for more details, see here). Thus, rather than excluding the possibility altogether, the CJEU could have imposed conditions to establish what is an acceptable substitution of auxiliary undertakings and what is not.

Finally, the point on additional checks being required from the contracting authority is relevant. However, rather than considering it a sufficient reason to prevent the substitution, a proportionality assessment would have seemed more appropriate. Given that the exclusion narrows down competition for the contract, the contracting authority should be able to demonstrate that there are sufficient administrative difficulties to justify proceeding this way.

Thus, in outline, I would have preferred that the CJEU departed from AG Wahl's Opinion and declared 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.

In my view, my preferred interpretation is encapsulated in Article 63(1) of Directive 2014/24/EU, in particular as read in the light of the principle of competition in Article 18(1) thereof [see A Sanchez-Graells, Public procurement and the EU competition rules, 2nd edn (Hart, 2015) 315-318]. However, the Casertana Judgment may raise some questions around that approach, which requires some closer analysis.

New doubts concerning Article 63(1) of Directive 2014/24/EU

In the Casertana Construzioni Judgment, the CJEU follows its previous approach in Partner Apelski Dariusz (paras 82-94, see here) and the Opinion of AG Wahl and rejects both (i) the application of Article 63(1) of Directive 2014/24/EU to the case ratione temporis (which is uncontroversial, as the tender took place in 2013) and (ii) the possibility of interpreting the rules of Directive 2004/18/EC in light of Article 63(1) of Directive 2014/24/EU. Casertana reiterates the finding in Partner that Article 63(1) of Directive 2014/24/EU introduces 'substantial amendments as regards the right of an economic operator to rely on the capacities of other entities in the context of public contracts' (C-223/16, para 26) and is therefore not suitable as an interpretive tool in relation to Directive 2004/18/EC because the latter is not affected by 'problems of interpretation' (C-223/16, para 28). However, the case is not limited to ignore Article 63(1), but rather seems to consolidate a strict interpretation of this provision. Additionally, given the divergence between Article 63(1) of Directive 2014/24/EU and the Casertana Judgment, the latter creates a potential difficulty concerning the cut-off point at which the possibility to replace non-qualified third parties ends.

Seemingly too restrictive (implicit) interpretation of Article 63(1) of Directive 2014/24/EU

Both the Partner and Casertana cases stress that the new rules foresee that "Article 63(1) of Directive 2014/24 now provides that economic operators may ‘only rely on the capacities of other entities where the latter will perform the works or services for which these capacities are required’ ... and that ‘the contracting authority shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion’" (C-223/16, para 25). The second part of this statement has been discussed above (and could have been reconciled with the pre-2014 rules by operation of the principle of proportionality). The first part of the statement is problematic. 

Indeed, this incipient consolidation of the rules in Article 63(1) could trigger difficulties because, according to its literal wording, the restriction of reliance on third parties where they will perform the work or services for which the capacities are required solely concern "criteria relating to the educational and professional qualifications as set out in point (f) of Annex XII Part II [ie the educational and professional qualifications of the service provider or contractor or those of the undertaking’s managerial staff, provided that they are not evaluated as an award criterion], or to the relevant professional experience" -- or, in other words, economic operators are allowed to rely on financial, economic and other types of professional qualifications of third parties even if those parties will not directly carry out the works. This comes to allow for consultancy and technical support contracts to back up the tenders of economic operators that may not have all those resources in-house and is generally pro-competitive. By adopting a blanket approach to the requirement of direct involvement in the execution of the contract beyond the limited remit established in Article 63(1) of Directive 2014/24/EU, a broad reading of the Casertana and Partner cases could deactivate large parts of the flexibility for the formation of consortia that are inherent to the system.

In the specific case of Casertana, all we know is that 

Casertana participated in the call for tenders within the framework of an ad hoc tendering consortium under formation, as lead company, and declared that it relied, as regards the qualifications required by [the applicable Italian rules], on those of two auxiliary undertakings, one being Consorzio Stabile GAP. 

In the course of the procedure and after the end of the stage of admission to the call for tenders, that auxiliary undertaking [is Consorzio Stabile GAP] lost qualification for the required category of services, thus becoming qualified for a lower category of services only (C-223/16, paras 11-12).

Put simply, it is not known why Consorzio Stabile GAP saw its qualification reduced for a lower category of services. If the reasons were not linked to the educational and professional qualifications of its managerial staff or the relevant professional experience of the undertaking, then an acritical application of the decision of the CJEU to the case would imply an unnecessary (and illegal) restriction of the flexibility foreseen in Article 63(1) of Directive 2014/24/EU.

Unresolved timing issues -- when does Article 63(1) of Directive 2014/24/EU stop applying?

In Casertana, the CJEU simply indicated that there is no requirement to give the tenderer an opportunity to substitute auxiliary undertakings that have lost the required qualifications after the tender has been submitted because that would amount to allowing for a substantial change of the tender (see above). It also indicated that tenderers could not claim force majeure (or, more generally, the unpredictability of the loss of qualification by the auxiliary undertaking) to gain such an opportunity to substitute them because, although the procurement rules enable "a tenderer to rely on the capacities of one or more third party entities in addition to its own capacities in order to fulfil the criteria set by a contracting authority, that tenderer remains responsible, in its capacity as the lead undertaking in a consortium of undertakings, for the compliance of those undertakings with the obligations and conditions for participation in the call for tenders laid down by the contracting authority in the documents relating to the procurement procedure at issue" (C-223/16, para 41). A question arises on how to interpret these two issues in situations where Article 63(1) of Directive 2014/24/EU is applicable.

Taking the second aspect first, it seems clear that under Article 63(1) of Directive 2014/24/EU, the responsibility for ensuring compliance with the selection criteria included in the call for tenders is shared between the lead undertaking and the contracting authority. In that regard, it is worth emphasising that the provision foresees that

The contracting authority shall ...verify whether the entities on whose capacity the economic operator intends to rely fulfil the relevant selection criteria and whether there are grounds for exclusion ... The contracting authority shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion. The contracting authority may require or may be required by the Member State to require that the economic operator substitutes an entity in respect of which there are non-compulsory grounds for exclusion.

Given this wording, and in case the contracting authority issues a favourable opinion on the qualifications held by a given auxiliary undertaking (or fails to check them, as was the case in Casertana, where the loss of qualification was only raised in the context of a counter-claim against Casertana's challenge to the award of the contract to a different consortium), issues will arise concerning legitimate expectations, in particular concerning the ability to replace no loner qualifying third parties at any point of the procurement process, all the way through to award (including any litigation concerning findings of loss of compliance with selection criteria at tender evaluation stage). However, this would be in stark contrast with the first aspect of the Casertana Judgment, which considers a substitution of auxiliary undertaking an impermissible tender modification. Therefore, the question will arise whether Article 63(1) is applicable throughout the procurement procedure, or only up to the point of submission of tenders.

In my view, the answer to the question cannot be all-or-nothing (as has been the case in AG Wahl's Opinion and in the Judgment), but rather require an analysis of the terms of the substitution (if the new auxiliary undertaking simply assumes all obligations of the previous undertaking in the exact same conditions, where is the advantage?), as well as a proportionality assessment of any new verification work required from the contracting authority as a result of the substitution (in the Casertana case, the issue revolved around qualifications administered by a third party [ie a Certification Body], so it would have seemed rather easy to substitute auxiliary undertakings without requiring much from the contracting authority). Failing that, there is a risk of limiting Article 63(1) to a one-shot remedial opportunity restricted to the contracting authority's first assessment of the tenderer's (and its auxiliary's) compliance with exclusion and qualitative selection rules. Even if this would be an improvement over the 2004 system (in particular as interpreted in Casertana), it would fall short from the flexibility that can be derived from a broader and more dynamic reading of Article 63(1) of Directive 2014/24/EU.

Interesting guidance on confidentiality of commercial secrets in procurement litigation issued by the TCC

3058489_Technology-and-Construction-Court.JPG

In July 2017, the Technology and Construction Court (a sub-division of the Queen's Bench Division, part of the High Court of Justice for England and Wales) adopted new guidance on procedures for public procurement litigation (see Appendix H to the Technology and Construction Court Guide; the TCC guidance).

The TCC guidance includes two interesting sets of recommendations. One concerns an invitation to exhaust the possibilities for alternative dispute resolution before proceeding to full-fledged litigation (see paras [4] to [8]). The other concerns the disclosure of confidential information between the parties of the dispute (see paras [27] to [48]).

The latter is an issue that raises difficult problems for the protection of business secrets, and I find the TCC guidance interesting in the balance it tries to achieve between ensuring that disappointed tenderers gain access to the information they need to support their claims, and the broader considerations surrounding the need to ensure adequate protection of business secrets in order not to deter participation in public tenders (which is a tricky issue facing all EU jurisdictions, including the rules applicable to procurement carried out by the EU Institutions, and on which we are concentrating in the on-going research of the EPLG).

As the TCC guidance puts it, indeed, "[c]onfidentiality is not a bar to disclosure. However, the need to protect confidential information needs to be balanced by the basic principle of open justice", at para [27]. The TCC guidance aims to achieve such balance through practical approaches and general criteria for the balancing of interests. The approaches adopted by the TCC have been praised for being less restrictive than some of the decisions previously adopted in the context of procurement litigation in England and Wales (Kotsonis & Williams). 

In my view, beyond the effects it can have in litigation in England and Wales, the TCC guidance can be useful as a benchmark for the treatment of confidential information in other jurisdictions -- provided that the practical solutions that derive from the peculiarities of the British legal culture are adapted to domestic idiosyncrasies.

In particular, there are three aspects that I would identify as best practice susceptible of replication or adaptation in other legal contexts:

1. Promotion of the use of redacted versions of documentation rather than absolute bans on the disclosure of materials, as the use of redacted documents enables documents to be more widely disclosable (see paras [32]-[33]), and thus avoids decisions on confidentiality being taken on an 'all-or-nothing' basis for each of the documents. The guidance also indicates the best way of preparing and submitting to the court redacted versions of documents containing confidential information in a manner that allows for scrutiny and a speedy narrowing down of any discrepancies between the parties on the need to redact any specific bits of information.

2. Creation of one- or two-tier confidentiality rings. TCC guidance defines confidentiality rings as comprising persons to whom documents containing confidential information may be disclosed on the basis of their undertakings to preserve confidentiality, at para [34]. Importantly, the guidance indicates both that the party's external legal advisors will need to be included in the confidentiality ring (para [37]) and that the inclusion of personnel of the parties, including their in-house lawyers, will need to be assessed on the basis of relevant factors likely to include "that party’s right to pursue its claim, the principle of open justice, the confidential nature of the document and the need to avoid distortions of competition and/or the creation of unfair advantages in the market (including any retender) as a result of disclosure" (para [39], emphasis added). In reaching a decision about a specific individual, account needs to be taken of "his/her role and responsibilities within the organisation; the extent of the risk that competition will be distorted as a result of disclosure to them; the extent to which that risk can be avoided or controlled by restrictions on the terms of disclosure; and the impact that any proposed restrictions would have on that individual (for example by prohibiting them from participating in a re-tender or future tenders for a period of time)" (para [40], emphasis added). Similar reasoning would apply to other specialist advisors (such as accountants or other experts) (see para [43]).

Interestingly, the TCC guidance clarifies that employee representatives may need to be "admitted to a confidentiality ring on different terms from external representative" (para [41]), this giving rise to two-tier confidentiality rings--which administration can take different forms: ie, either court administered, with the judicial body establishing the conditions of access by different categories of representatives of the parties, or by delegating the management of the access to the confidentiality ring to the external advisors of the parties, who would then act as gatekeepers of the confidential information (para [42]). This second possibility may be foreign to practice and legal culture in other jurisdictions, but the first (court-administered) possibility for a two-tier confidentiality ring seems quite promising to me.

3. Establishment of (enforceable) undertakings to prevent unauthorised uses of the information gained as part of a confidentiality ring. TCC guidance establishes that access to confidential information will only be allowed where the members of confidentiality rings provide undertakings that "will preclude the use of the relevant material other than for the purposes of the proceedings and prevent disclosure outside the ring" (para [44]). More importantly, the TCC guidance explicitly contemplates the possibility for additional undertakings to be necessary "where there are concerns that disclosure could have an impact on competition and/or any subsequent procurement", and that such additional measures can include: "(1) Preventing employee representatives from holding copies of documents at their place of work and requiring them to inspect the material at a defined location (such as the offices of their external lawyers) ; (2) Limiting the involvement of a recipient of a document in any re-procurement of the contract which is the subject of the litigation; (3) Limiting the role which a recipient can play in competitions for other similar contracts for a fixed period of time in a defined geographic area; and/or (4) Preventing the recipient from advising on or having any involvement in certain matters, again for a fixed period of time" (para [45], emphasis added).

Of course, the monitoring of such undertakings will be complex and there can be very difficult evidentiary issues linked to claims of undue subsequent use of confidential information gained in the context of previous procurement litigation. On that issue, the TCC guidance establishes a strict proportionality test, whereby "[w]hilst the Court will give weight to the need to protect competition in the market, the more onerous the proposed restriction is, the more clearly it will need to be justified" (para [46]). In my view, this will play both ways. On the one hand, high risks of competition distortions will be able to justify the imposition of heavy restrictions on future activity of the employee concerned. On the other, an in reverse reasoning, the Court will have to ensure that future restrictions are not disproportionate to the value of the information and the position of the employee within its organisation.

However, there is a third implication that may bear spelling out, which is that some risks of future distortions of competition will be so high, that no acceptable restrictive measure can be designed--in which case I would argue against the inclusion of the relevant person in the confidentiality ring (eg I would not grant the CFO of a company access to the detailed financial schedule of any of its competitors).

* * * * 

Overall, I think that the TCC guidance will be useful and it will be interesting to see to what extent the practical roll-out of these recommendations provide an even more detailed case study that can serve as benchmark in other jurisdictions seeking to regulate the disclosure of confidential information in the context of public procurement litigation.

Transparency in Procurement by the EU Institutions

eplg_logov3-2.png

The next collaboration of the European Procument Law Group (EPLG) will be on 'Transparency in public procurement'. Thanks to Dr Kirsi-Maria Halonen, we will meet in Helsinki on 4-5 September 2017 to discuss comparative reports on 11 jurisdictions, including 10 EU Member States and the rules applicable to the procurement of the EU Institutions. I was tasked with the last topic, and my draft report on 'Transparency in Procurement by the EU Institutions' is here: https://ssrn.com/abstract=3020168. Comments most welcome: a.sanchez-graells@bristol.ac.uk.

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.

 

CJEU opens door to manipulation of evaluations and fails to provide useful guidance on the use of 'soft quality metrics' in the award of public contracts (C-6/15)

In its Judgment of 14 July 2016 in TNS Dimarso, C-6/15, EU:C:2016:555, the Court of Justice of the European Union (CJEU) issued some important clarifications on the requirements applicable to the disclosure of evaluation methods under the EU public procurement rules. However, it also turned down the opportunity of clarifying what are the limits of the discretion that contracting authorities enjoy when deciding which evaluation methods to use and, more importantly, it failed to address the important and quite specific concerns about the use of 'soft quality metrics' that AG Mengozzi had raised in his Opinion in this case (as discussed here, where background to the case is offered).

The case broadly raised two main legal issues. First, whether in addition to the disclosure of the award criteria and their weighting (as required by Art 53(2) Dir 2004/18 and now Art 67(5) Dir 2014/24), contracting authorities must also disclose in the tender documentation, or at some point prior to the review of the offers, the evaluation methods they plan to use in the assessment of the tenders. Second, whether having disclosed a numerical weighting applicable to the quality and price criteria (50/100 each), the contracting authority was right to assess the quality criterion in accordance with a soft qualitative ‘high — satisfactory — low’ scale, not referred to in the contract documents.

no obligation to disclose (or indeed establish) evaluation rules prior to the review of the tenders

Regarding the first issue, after reiterating its case law on the purpose of the rules on disclosure of award criteria and their weighting, and stressing their relevance in ensuring equality of treatment between tenderers both when they formulate their tenders and when those tenders are being assessed by the contracting authority (para 22), the CJEU adopted a position that I find surprising. The CJEU stressed that

it is possible for a contracting authority to determine, after expiry of the time limit for submitting tenders, weighting factors for the sub-criteria which correspond in essence to the criteria previously brought to the tenderers’ attention, provided that three conditions are met, namely that that subsequent determination, first, does not alter the criteria for the award of the contract set out in the tender specifications or contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected their preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see judgment of 21 July 2011 in Evropaïki Dynamiki v EMSA, C‑252/10 P, not published, EU:C:2011:512, paragraph 33 and the case-law cited) (C-6/15, para 26). 

However, it did not apply this reasoning by analogy to evaluation methods as could have been expected. On the contrary, the CJEU adopted a very lenient approach and, after confirming that neither the rules in the Directive nor the previous case law referred to an obligation to disclose evaluation methods, it went on to establish that

29 ... an evaluation committee must be able to have some leeway in carrying out its task and, thus, it may, without amending the contract award criteria set out in the tender specifications or the contract notice, structure its own work of examining and analysing the submitted tenders (see judgment of 21 July 2011 in Evropaïki Dynamiki v EMSA, C‑252/10 P, not published, EU:C:2011:512, paragraph 35).
30 That leeway is also justified by practical considerations. The contracting authority must be able to adapt the method of evaluation that it will apply in order to assess and rank the tenders in accordance with the circumstances of the case.
31 In accordance with the principles governing the award of contracts provided for in Article 2 of Directive 2004/18 and in order to avoid any risk of favouritism, the method of evaluation applied by the contracting authority in order to specifically evaluate and rank the tenders cannot, in principle, be determined after the opening of the tenders by the contracting authority. However, in the event that the determination of that method is not possible for demonstrable reasons before the opening of the tenders, as noted by the Belgian Government, the contracting authority cannot be criticised for having established it only after that authority, or its evaluation committee, reviewed the content of the tenders.
32 In any event, pursuant to the principles governing the award of contracts ... the determination by the contracting authority of the method of evaluation after the publication of the contract notice or the tender specifications cannot have the effect of altering the award criteria or their relative weighting (C-6/15, paras 29-32, emphasis added). 

The reasoning of the CJEU raises two surprising issues, in my view. First, the CJEU seems to conflate the need for the contracting authority to establish an evaluation method that is adapted to the particularities of a given tender (which seems correct, para 30) with the need for the contracting authority to be able to do that at any time (which seems incorrect, para 31). Accepting that the contracting authority can design ad hoc evaluation methods for each of the contracts it tenders does not imply that it can leave this important aspect of the evaluation process for a late stage. Logically, it would seem that setting the award criteria, their weighting and establishing the rules according to which they will be evaluated are different aspects of one same decision: how will the tenders be evaluated so that the contracting authority can decide which one is the most economically advantageous?

It does not seem diligent for the contracting authority to set out the award criteria and their weighting without having determined the way these will be applied in the evaluation. It also seems to create unnecessary uncertainty to tenderers. This is very clear in relation to the use of automatic formulae in electronic auctions, which need to be disclosed to the tenderers prior to their use (Art 54(5) Dir 2004/18 and Art 35(6) Dir 2014/24).  There does not seem to be a good reason for these considerations not to apply to the use of evaluation methods and to require that the contracting authority is diligent in setting them up in a timely manner (ie when it is setting out the award criteria and their weighting).

Second, and more surprisingly, the CJEU fails to extend to the evaluation method the most obvious and minimal guarantee to avoid (impossible to prove) discrimination, ie determining the illegality of establishing (evaluation) criteria relevant for the assessment of the tenders after the evaluation committee has reviewed them (para 31). Before anything else, it must be noted that the CJEU accepts that 'the method of evaluation applied by the contracting authority in order to specifically evaluate and rank the tenders cannot, in principle, be determined after the opening of the tenders by the contracting authority'. The reasoning should not have been as a matter of principle, but as a point of absolute requirement.

However, it is not clear why the CJEU concedes that 'in the event that the determination of that method is not possible for demonstrable reasons before the opening of the tenders, as noted by the Belgian Government, the contracting authority cannot be criticised for having established it only after that authority, or its evaluation committee, reviewed the content of the tenders'. There is no indication whatsoever in the Judgment of which reasons may have been adduced by the Belgian Government to try to justify the impossibility of establishing the evaluation method before having reviewed the tenders. This is amazing because it makes it impossible to understand where the threshold of impossibility lies and, more importantly, because there do not seem to be any good reasons to accept that a diligent evaluation committee can be allowed to decide on the evaluation method after it has already seen the content of the tenders. Whether this is done in a presential meeting or remotely, there is no justification for the assessors not to agree on the evaluation rules first (and document them), and then proceed to the evaluation. In my view, the CJEU has neglected the need to ensure the right to good administration and, in particular, the need to ensure the most basic guarantees that tenderers are treated impartially and fairly, and that relevant matters are dealt with in a timely fashion (as required by Article 41(1) Charted of Fundamental Rights).

The final protection that the CJEU tries to (re)establish in the case by stressing that 'the determination by the contracting authority of the method of evaluation after the publication of the contract notice or the tender specifications cannot have the effect of altering the award criteria or their relative weighting' is inane and insufficient because the possibility of establishing and playing with evaluation rules after having seen the content of the tenders leaves way too much scope to coming up with rules that allow for an ex post rationalisation of the choice of a given winning in tender without necessarily violating the pre-disclosed information on the applicable award criteria and weightings. This deserves stern criticism.

the use of 'soft quality metrics' in the evaluation of tenders

Moving on to the second issue concerning the use of 'soft quality metrics', such as the ‘high — satisfactory — low’ scale in the case at issue, in my opinion, the CJEU also carried out a defective analysis. The shortcomings of the analysis derive from the fact that the CJEU uses the answer to this second aspect to try to compensate for the weakness of its answer to the first question. Indeed, the CJEU premises the analysis of the use of the 'soft quality metrics' on the assessment of whether their use altered the applicable award criteria and their relative weighting. The reasoning of the CJEU is as follows:

35 It appears that that procedure did not make it possible to reflect, when ranking the tenderers in order to identify the most economically advantageous tender, differences in the quality of their tenders relative to their price, while taking account of the relative weighting of the award criteria resulting from the indication ‘(50/100)’. In particular, it appears that that procedure was capable of affecting the price criterion by giving it decisive weight relative to the tenders ranked in the [‘high — satisfactory — low’] scale of quality ... It is for the referring court to ascertain whether the relative weighting of each of the award criteria published in the contract notice was in fact complied with by the contracting authority during the evaluation of the tenders.
36 While the contracting authority may use a scale for the evaluation of one of the award criteria without it being published in the call for tenders or the tender specifications, that scale may not, however ... have the effect of altering the relative weighting of the award criteria published in those documents (C-6/15, paras 35-36, emphasis added). 

I find this problematic because it does not address the core problem of using 'soft quality metrics' at all. Should they have been disclosed to tenderers or, more importantly, should they have been published in the tender documentation together with an explanation of why specific weightings could not be established, the use of this scale would be unobjectionable under the TNS Dimarso test, while still allowing for very subjective and difficult to objectively verify comparisons of the tenders. This leaves the question of which evaluation rules are compatible with the two main requirements in the evaluation of tenders--ie that the award rules, not only the award criteria themselves and their weighting, have to '(i) to be linked to the subject matter of the contract (ie, to be ‘relevant’), and (ii) to allow the contracting authority actually to determine which tender is economically the most advantageous (ie, to be ‘enabling’)' [A Sanchez-Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 380]. By failing to clarify that 'soft quality metrics' are not enabling and do not provide sufficient objectivity to the evaluation process so as to make sure that the contracting authority does not overstep the limits of its discretion, in my view, the CJEU has left too much space for manipulation in the assessment of tenders.

This is something I had criticised [A Sanchez-Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 388], even if in relation to the award criteria (but the arguments apply equally to evaluation rules meant to assess them] considering the following:

Restrictions Derived from the Inclusion of Non-Quantifiable or Subjective Award Criteria, and the Ensuing Need to Objectify Treatment of Qualitative Criteria. Another way in which the selection and weighting of award criteria could give rise to distortions of competition—and, probably, to discrimination amongst tenderers—would be through the introduction of non-quantifiable criteria, or essentially qualitative or subjective criteria that significantly diminished the possibilities of an overall objective appraisal of the tenders or conferred on contracting authorities unrestricted freedom of choice amongst tenderers. In this regard, even if article 67(2)(a) of Directive 2014/24 allows for the taking into consideration of this type of criterion—referring, in general terms, to criteria such as ‘technical merit’ or ‘aesthetic characteristics’—the requirements of relevance and enabling character of the award criteria (see above, this section), as well as the need to avoid conferring on contracting authorities unrestricted freedom of choice and to ensure that the award criteria make provision for an objective assessment of tenderers, should be taken into particular consideration and constrain the decisions adopted by the public buyer.[1]
As regards the requirement of relevance of such qualitative award criteria, it should be stressed that the circumstances under which considerations such as aesthetic characteristics or technical merit will be relevant and material to the subject-matter of the contract are relatively limited (at least if they are unrelated to performance or functional requirements, which are quantifiable and, hence, do not generate significant difficulties). Moreover, it is submitted that they will generally be associated with tenders that should be ruled by the requirements applicable to design contests—which are specifically regulated and set special rules in this respect (see arts 78 to 82 of dir 2014/24),[2] particularly aimed at ensuring the objectivity and independence of the members of the committee entrusted with the evaluation of qualitative or subjective elements of the proposals. Consequently, aesthetic characteristics or technical merit might be assigned very limited relevance in other types of tendering procedures. The substantial irrelevance of such qualitative or non-quantifiable aspects will, then, require only limited consideration in the majority of the cases, if at all.
Moreover, in order to ensure transparency and impartiality, contracting authorities should (as far as possible) set objective or quantifiable proxies to measure primarily subjective or qualitative characteristics of the tenders; or, at least, set up mechanisms (possibly based on the rules regarding design contests) to ensure an impartial appraisal of subjective or qualitative dimensions of the tenders. If such quantification, or ‘proximisation’ or approximation, is possible, the possibilities for discrimination or distortion of competition will be smaller. Consequently, the adoption of this requirement seems desirable whenever its implementation is feasible.
Therefore, a restrictive approach towards the permissibility of the use of these criteria as the basis for the award of contracts—again, in cases other than design contests—seems appropriate. Consequently, this type of consideration should remain as a secondary criterion, or as a rather marginal complement, to objective and easily quantifiable criteria used to determine the award of the contract to the most economically advantageous tender. Along these lines, and attending to the subject-matter of the contract, contracting authorities should give proper weighting to qualitative or subjective criteria (even if ‘quantified’)—which, in our opinion, should be rather limited and marginal in most instances.
To sum up, it is submitted that contracting authorities are bound to ensure the objective and transparent assessment of tenders, particularly by i) avoiding undue recourse to qualitative or non-quantifiable (subjective) award criteria in procedures other than design contests, and ii) assigning them a proper (limited) weighting; and, in general, they are under a duty to exercise self-restraint in their decisions regarding such criteria, particularly when failure to do so could result in their exercise of unrestricted freedom of choice amongst tenderers and/or generate distortions of competition or discrimination of tenderers.
[1] See: S Arrowsmith, The Law of Public and Utilities Procurement. Regulation in the EU and the UK, Vol. 1, 3rd edn (London, Sweet & Maxwell, 2014) 766–71.
[2] See S Arrowsmith, The Law of Public and Utilities Procurement, 2nd edn (London, Sweet & Maxwell, 2005) 829–39;  PA Trepte, Public Procurement in the EU: A Practitioner’s Guide, 2nd edn (Oxford, Oxford University Press, 2007) 232–4; and C Bovis, EC Public Procurement: Case Law and Regulation (Oxford, Oxford University Press, 2006) 248–51.

Study on administrative capacity to manage public procurement in the EU - some critical remarks on public procurement transparency

The European Commission has published the study 'Stock-taking of administrative capacity, systems and practices across the EU to ensure the compliance and quality of public procurement involving European Structural and Investment (ESI) Funds' (PwC, Jan 2016), which offers an interesting perspective on the existing administrative capacity to manage public procurement in the EU. In its own terms, '[the] study offers a unique and unprecedented overview of the current state of administrative capacity in the field of public procurement in the EU with a special focus on the implementation of the European Structural and Investment (ESI) Funds. It looks at the systems and structures in the individual Member States and provides valuable information as to how to improve the quality of public procurement and ensure more efficiency, transparency and regularity, in line with the Investment Plan for Europe and the EU budget focused on results initiative'.

The study has country-specific profiles with 'recommendations regarding specific needs identified in the 28 Member States and the areas where they could improve performance and effectiveness of public procurement benefiting from the cases of good practice contained in the study'. Such recommendations build up on a general section on 'good practices', where the study focuses on  seven categories of issues that PwC considers relevant for the proper administration of a well-functioning public procurement system, including:

  • Ad hoc support [to contracting authorities having issues with procurement rules or practice];
  • Guidance documents for contracting authorities;
  • Professionalisation of public procurement practitioners;
  • Initiatives which ensure the quality of public procurement;
  • Review processes;
  • Measures for simplification and efficiency;
  • Data monitoring and practices fostering transparency.

Some of these recommendations are already shaping EU policy in the public procurement field. In particular, the 'good practices' on ad hoc support are informing the Commission's project to set up and roll-out a 'voluntary ex ante assessment mechanism of the procurement aspects of certain large-scale infrastructure projects' (as included in the 2015 Strategy for the upgrade of the internal market), which may well result in the creation of a help-desk or hotline structured around the existing experiences in France, Slovenia, Finland of the Netherlands; see pp. 72-74 of the PwC report).

Similarly, the considerations around good practices concerning public procurement transparency (pp. 85-86) are also likely to inform the Commission's project to encourage Member States to create centralised public procurement registers as part of its commitment to pursue '[i]nitiatives for better governance of public procurement through the establishment of contract registers, improved data collection and a networking of review bodies' (as also included in the 2015 Strategy for the upgrade of the internal market; for discussion, see here and here). In that regard, it is worth looking closely at what the PwC report considers good practices in this area. According to the report,

The online publication of detailed and regularly updated public procurement data is a key component of an effective monitoring and transparency system. This can benefit to a wide range of stakeholders, from the public authorities who can use this data to monitor and evaluate their own purchasing activities to economic operators who can better assess the public sector markets. Besides, the publication of public procurement data also helps civil society groups to conduct their oversight activities on public spending.
Key success factors: Comprehensive and quality data covering various aspects of procurement (e.g. number, economic value, procedure); User-friendly and intuitive websites to easily access the data; Data made available online should be comparable, freely released, and downloaded in usable format; Regular update of the data published.

At this level of generality, the report is not massively useful because it leaves important issues of detail about the information to be published, whether access needs to be unrestricted and universal (I submit it should not) or different stakeholder should have access to different levels of information and at different times, etc. Moreover, the report makes some general statements that can be strongly contested. For instance, the report emphasises that

There is ... a benefit in collecting and publicising information not directly related to a specific procedure. For example, some [Member States], such as Latvia, Spain and Slovakia, require contracting authorities to publish pipelines of up-coming contracts, which can be invaluable tools for bidders to manage their businesses plans and prepare their most competitive officers. 

This is very problematic because this is the sort of excessive transparency that can easily result in cartelisation of (future) tender procedures and, in my view, there is no need whatsoever for this type of advance publication of contract opportunities if contracting authorities are willing to provide reasonable tender preparation times [for broader discussion, see A Sanchez-Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 73-75, and ibid., 'The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives' (2013)]. Thus, a more nuanced and careful consideration of these issues would be needed before simply presenting more transparency as always and intrinsically positive, and as a 'good practice' that should be disseminated throughout the 28 EU Member States--which it simply is not.

When it comes to the assessment of specific cases, the PwC report includes five short case studies in this area: Spain (Public Contracts Registry), Lithuania (Monitoring and publication of data on framework agreements), Slovenia ("Supervizor" transparency tool), Portugal (BASE Public Contracts Portal) and Slovakia (Single-stop online portal for public procurement analysis). All these case studies stress that publication of procurement information is positive, and indicate that there are issues of quality of the data published and of accessibility and machine-readability that need to be addressed. On the basis of that, the report goes on to recommend that Member States:

  • Integrate interoperability with the online publication system into the national eprocurement system so that the relevant data is automatically uploaded to the public website, minimising delays in publication;
  • Incorporate a comprehensive and user friendly search engine in any online database so that users can identify the information that is relevant to them;
  • Allow users to download search results in at least one commonly used and machine readable format such as CSV or Excel;
  • Contracting authorities should be required to submit preliminary data on upcoming projects, either via an annual procurement plan, or an advanced notification requirement for major and recurring contracts. 

I would personally take issue with the final recommendation and challenge it as an instance of detrimental public procurement practice. Elaborating a procurement is probably a good governance tool. Publishing it is a very ill-informed decision. Not in vain, one of the recommendations included in the OECD's Guidelines for Fighting Bid Rigging in Public Procurement (2009) is for contracting authorities to avoid predictability and, in particular, to '[a]void predictability in your contract requirements: consider aggregating or disaggregating contracts so as to vary the size and timing of tenders'.

Thus, engaging in the type of advanced disclosure advocated by the PwC report is simply contrary to this recommendation and creates excessive predictability and certainty of demand for both major and recurring contracts. Simply put, this is an ill-informed recommendation and one that the Commission and the Member States should ignore. It will be particularly important for this not to feed into the Commission's initiatives under the 2015 Strategy for the upgrade of the internal market. Any development of rules on public procurement registers needs to be much more nuanced and informed by economic theory.

In my view, the main normative recommendations (ie 'good practices') on which public procurement registers should be based are as follows:

  • Public contract registers should not be fully available to the public. Access to the full registry should be restricted to public sector officials under a strong duty of confidentiality protected by appropriate sanctions in cases of illegitimate disclosure.
  • Even within the public sector, access to the full register should be made available on a need to know basis. Oversight entities, such as the audit court or the competition authority, should have full access. However, other entities or specific civil servants should only access the information they require to carry out their functions.
  • Limited versions of the public contract registry that are made accessible to the public should aggregate information by contracting authority and avoid disclosing any particulars that could be traced back to specific tenders or specific undertakings.
  • Representative institutions, such as third sector organisations, or academics should have the opportunity of seeking access to the full registry on a case by case basis where they can justify a legitimate or research-related interest. In case of access, ethical approval shall be obtained, anonymization of data attempted, and specific confidentiality requirements duly imposed.
  • Delayed access to the full public registry could also be allowed for, provided there are sufficient safeguards to ensure that historic information does not remain relevant for the purposes of protecting market competition, business secrets and commercial interests.
  • Tenderers should have access to their own records, even if they are not publicly-available, so as to enable them to check their accuracy. This is particularly relevant if public contract registries are used for the purposes of assessing past performance under the new rules.
  • Big data should be published on an anonymised basis, so that general trends can be analysed without enabling ‘reverse engineering’ of information that can be traced to specific bidders.
  • The entity in charge of the public contracts registry should regularly publish aggregated statistics by type of procurement procedure, object of contract, or any other items deemed relevant for the purposes of public accountability of public buyers (such as percentages of expenditure in green procurement, etc).
  • The entity in charge of the public contracts registry should develop a system of red flag indicators and monitor them with a view to reporting instances of potential collusion to the relevant competition authority.

My full discussion and reasons for these recommendations are available here.

Should evaluation committees Be Banned From Using 'soft quality metrics' when they assess Public tenders? (C-6/15)

In his Opinion of 10 March 2016 in TNS Dimarso, C-6/15, EU:C:2016:160, Advocate General Mengozzi has addressed the general question whether EU public procurement rules 'read in the light of the principles of equal treatment and transparency, [require] that a contracting authority should always, or, if not, in certain circumstances, make known in advance, in the contract notice or the contract documents, the method of evaluation or weighting rules used to assess tenderers’ bids'. The case is to be decided by the Court of Justice of the European Union (CJEU) on the basis of the phasing-out rules in Art 53(2) of Directive 2004/18, but the interpretation will be relevant for the future application of Art 67(5) of Directive 2014/24.

In my view, the case is interesting, not primarily because of the discussion on whether evaluation methods need to be disclosed together with award criteria and their weightings, but more importantly because it brings to light the simple fact that some evaluation methods are unable to meet the requirements of the EU rules--to the effect that the award phase needs to enable the contracting authority to actually determine which is the most economically advantageous tender with a sufficient degree of precision and certainty. Thus, I critically assess AG Mengozzi's excellent opinion from this perspective.

The Dimarso case

In this case, a Belgian contracting authority issued a call for tenders for the provision of services and indicated that the award criteria would be as follows:

1 Quality of the tender (50/100)
Quality of the preparation, organisation and execution of the work on the ground, and of the encryption and initial data processing. The services proposed must be described in as much detail as possible. It must be clear from the tender that the tenderer is capable of taking on the whole contract (minimum 7 000 samples / maximum 10 000 samples) within the prescribed 12-month delivery deadline.
2 Price (50/100)
Cost of delivering the contract in relation to the basic sample (7 000 samples) and cost per additional batch of 500 addresses supplied (amounts inclusive of VAT).

There was no further indication of how these criteria would be applied. When it came to evaluation of the tenders received, the evaluation team 'evaluated and compared with each other on the basis of the criteria set out above. First, the tenders were examined and evaluated on the basis of the “quality” criterion. For this, each tender was unanimously assigned a given score (high — satisfactory — low). Then, the price criterion was applied. On the basis of those scores, a final ranking was established' (Opinion in C-6/15, para 5, emphasis added).

Dimarso submitted a bid that scored high on quality grounds and was the highest on price. The contract was awarded to a competing tenderer which offer also scored high on quality and was lower in price. Dimarso challenges the way the evaluation team applied the award criteria on the following grounds:

the evaluation committee appears to have evaluated the tenders on the basis of the ‘high — satisfactory — low’ scale, not referred to in the contract documents, in relation to the tender quality criterion, whereas, according to Dimarso, it is clear from the contract documents that a score of 0 to 50 points should have been allocated to each tender. As regards the price criterion, the evaluation committee also failed to carry out an adequate examination, comparison and final assessment of the tenders taking into account the award criteria as set out in the contract documents, including the “50/100” weighting given to each of the award criteria in the call for tenders (Opinion in C-6/15, para 8, emphasis added).

This question raises then two issues: (1) whether the evaluation committee could rely on 'soft metrics' in order to apply the quality award criterion; and (2) whether such 'soft metrics' could be combined with straightforward price comparisons. I find these two questions of great practical relevance, so it is worth looking closely at AG Mengozzi's reasoning on these issues.

Assessment under Art 53(2) Dir 2004/18

It is worth reminding that Art 53(2) Dir 2004/18 established that

[when the award is made to the tender most economically advantageous from the point of view of the contracting authority], the contracting authority shall specify in the contract notice or in the contract documents ... the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender.
Those weightings can be expressed by providing for a range with an appropriate maximum spread.
Where, in the opinion of the contracting authority, weighting is not possible for demonstrable reasons, the contracting authority shall indicate in the contract notice or contract documents or, in the case of a competitive dialogue, in the descriptive document, the criteria in descending order of importance.

At this point, it is worth stressing that the only difference between Art 53(2) Dir 2004/18 and Art 67(5) Dir 2014/24 is that, in relation to the third paragraph, the seemingly permissive drafting of Art 53(2)III Dir 2004/18 ('Where, in the opinion of the contracting authority, weighting is not possible for demonstrable reasons') is tightened up in Art 67(5)III Dir 2014/24 ('Where weighting is not possible for objective reasons'). Given the strict interpretation that AG Mengozzi proposes for Art 53(2) Dir 2004/18 (which is to be shared), his Opinion will be equally relevant for the future interpretation of Art 67(5) Dir 2014/24 [along the same lines, see A Sanchez-Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 384-385].

Going back to the Dimarso case, AG Mengozzi starts by summing up the content of this provision by stressing that

the obligation to indicate not only the award criteria but also ... the relative weighting given to each of those criteria, except where there are good reasons why weighting is not possible, at the time of publication of the contract notice or contract documents ... serves to fulfil the requirement of compliance with the principle of equal treatment and the associated obligation of transparency (Opinion in C-6/15, para 20).

And that

contracting authorities have an obligation to indicate the weightings of the award criteria in the contract notice or the contract documents. It is only in the event that this proves impossible, for demonstrable reasons, that those entities may opt to prioritise those criteria, which prioritisation must in any event be adequately disclosed in the contract notice or the contract documents (Opinion in C-6/15, para 23, emphasis added).

The AG clarifies (paras 24-28) that the dispute in the case at hand is not whether having indicated that Quality (50/100) and Price (50/100) meant that both award criteria had equal weight or how they had to be combined amongst themselves to reach a final ranking of tenders, but that it is rather

in essence, [whether] the method of evaluation used (‘low — medium — high’) was so vague that it prompted the contracting authority to downgrade the assessment of the ‘quality’ criterion relative to that of the ‘price’ criterion, since the second criterion alone was actually capable of eliminating three of the four tenders submitted. In reality, therefore, Dimarso contends, the price criterion benefited from a higher relative weighting than the 50% previously announced in the contract documents. In other words, Dimarso submits that, if the method of evaluation had been made known to tenderers in advance, at the stage when the contract documents were published, it would inevitably have had an effect on the preparation of the tenders (Opinion in C-6/15, para 29, emphasis added).

AG Mengozzi then approaches this argument in stages. His reasoning heavily rests on two aspects. First, that it is clear that Art 53(2) Dir 2004/18 does not explicitly impose an obligation to disclose the evaluation method in addition to disclosure of award criteria and their weightings (para 32). Second, and notwithstanding that literal interpretation of Art 53(2) Dir 2004/18, that the CJEU has been clear in the imposition of restrictions on the way the evaluation team carries out its tasks (paras 37 ff). In my reading, the bone of his argument is as follows.

In relation to the setting of sub-weightings (or weighting factors for award sub-criteria), the CJEU has indicated that this is not a breach of EU procurement rules provided three conditions are met: ie '[1] that it does not alter the criteria for the award of the contract set out in the contract documents or the contract notice, [2] that it does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation, and [3] that it was not adopted taking into account matters likely to give rise to discrimination against one of the tenderers' [with reference to judgments in ATI EAC e Viaggi di Maio and Others (C‑331/04, EU:C:2005:718, paragraph 32); Lianakis and Others (C‑532/06, EU:C:2008:40, paragraph 43); and Evropaïki Dynamiki v EMSA (C‑252/10 P, EU:C:2011:512, paragraph 33); Opinion in C-6/15, para 40, emphasis added].

The same restrictions should be applicable to the adoption of an evaluation method because it can create the same effects as the adoption of sub-weightings--or, in his words, 'it is not inconceivable that a method of evaluation may have an effect not so much on the award criteria themselves as on the weighting of those criteria and, as such, may contain elements which would have been capable of influencing the preparation of tenders if that method had been made known to tenderers in advance... In that event, the ex post determination of such a method for evaluating tenders by a contracting authority would be unlawful and should, therefore, have been disclosed in advance in the contract notice or the contract documents' (Opinion in C-6/15, para 46). Therefore, 'the lawfulness of a method for evaluating tenders which is determined by a contracting authority ex post depends on whether the three conditions established by the Court’s case-law ... are met' (Opinion in C-6/15, para 47).

© iStockphoto.com/RichVintage

© iStockphoto.com/RichVintage

Opportunity for further clarification

Having disposed of the core of the case, AG Mengozzi goes on to suggest that the CJEU take this opportunity to clarify its case law and to stress that the adoption of evaluation methods need to be subjected to tighter requirements. His arguments are based on the use of 'soft quality metrics'--and, more specifically, on the distrust in their ability to actually enable the contracting authority to identify the most economically advantageous tender (MEAT)--as it emerges from his explanation of his main concern:

 

let us imagine that, of the tenders submitted, one was far superior, in terms of quality, to the other three, including those that were rated ‘high’. In other words, one of those tenders could have been ranked ‘excellent’ in the assessment of the ‘quality’ criterion. The price proposed by that tenderer would then have reflected the excellence of the quality of the services proposed by it and would therefore in all probability have been higher than the prices offered by the other tenderers. However, since ‘excellent’ did not feature on the range of scores (low — satisfactory — high) chosen by the evaluation committee, that tender of excellent quality could not but be rated ‘high’, at the very most, in relation to the ‘quality’ criterion. Since the price proposed by the tenderer of that bid was higher than those proposed by the others, possibly even by some tens or hundreds of euros, that bid had to be rejected... in that situation, ... the contracting authority might have been deprived of the tender representing the best value for money, contrary to the spirit in which the selection of tenderers on the basis of the most economically advantageous tender takes place (Opinion in C-6/15, paras 56-57, emphasis added).

AG Mengozzi considers that this is an unsatisfactory state of affairs and, in my reading, proposes that the existing case law of the CJEU is clarified so that contracting authorities do not create a situation where tenderers submit offers which positive attributes are not captured by the evaluation method. His proposal thus focuses on the need to disclose the evaluation method to be used from the start of the procurement process. In his view, 'the likelihood is ... that, if the method for evaluating tenders in the light of the ‘quality’ criterion, as established by the contracting authority, had been known in advance by the potential tenderers, it would have been capable of affecting the preparation of their tenders' (Opinion in C-6/15, para 60). Therefore,

the contracting authority (to which it will fall to ensure that the tendering procedure benefits from maximum legal certainty and to protect itself against actions for the annulment of that procedure) must determine the method or methods to be used to evaluate tenders in the light of the award criteria as early as possible. It would be reasonable to suggest, then, that, if that is the case, there does not appear to be any overriding reason such as to justify a refusal by the contracting authority to make known to potential tenderers the methods of evaluation in question, which it will in any event already have had to determine before the call for tenders (Opinion in C-6/15, para 63, emphasis added).

AG Mengozzi then goes on to discuss whether the condition should be to only require upfront disclosure of evaluation methods which have the potential to create a substantial impact effect on the preparation of the tenders, which he dismisses (paras 70 ff), on the basis that the system would be properly balanced 'by the obligation incumbent on the unsuccessful tenderer, which bears the burden of proof, to demonstrate, by reference to specific examples in its legal action, the differences (substantive as well as purely formal) which its tender would have exhibited if the elements of the method of evaluation in question or the method itself, which the contracting authority neglected to communicate, had been adequately disclosed before the tenders were prepared' (Opinion in C-6/15, para 73). 

personal critique

I share AG Mengozzi's views and concern, but I think that his proposal simply to disclose evaluation methods upfront would only carry us half way in sorting out the unresolved issue of the use of of 'soft quality metrics' in the evaluation of tenders. Regardless of upfront disclosure, which needs to take place, a method for the evaluation of quality aspects of procurement tenders that classifies tenders in pre-determined, tight 'quality levels' is bound to offer sub-optimal results. In the extreme,

a binary approach—ie, an approach based on meeting or not meeting a criterion, or an ‘all-or-nothing’ (or zero/one) approach—seems less desirable than a gradual approach or the adoption of sliding-scale-based evaluation rules ... whenever possible, it seems preferable that contracting authorities evaluate the degree to which tenders comply with each of the specified award criteria on a sliding scale (such as granting them points from 0 to 10, or 1 to 5, or any other scale). In this regard, the weighting of criteria will become less harsh and the appraisal of the tenders will arguably reflect with greater accuracy their relative strengths and weaknesses according to the overall set of award criteria' [A Sanchez-Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 391; Along the same lines, but opting for a monetary equivalent approach, see MA Bergman and S Lundberg, ‘Tender Evaluation and Supplier Selection Methods in Public Procurement’ (2013) 19(2) Journal of Purchasing and Supply Management 73]. 

More importantly, the assessment of quality elements needs to take place in a manner that does result in a loss of information of the relative quality of the offers. It has been the settled case law of the CJEU that 

although [the EU rules do] not set out an exhaustive list of the criteria which may be chosen by the contracting authorities, and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract, their choice is nevertheless limited to criteria aimed at identifying the tender which is economically the most advantageous (Case C-532/06 Lianakis [2008] ECR I-251 29 (emphasis added); Case 31/87 Beentjes [1988] ECR 4635 19; Case C-19/00 SIAC Construction [2001] ECR I-7725 35–36; Case C-513/99 Concordia Bus Finland [2002] ECR I-7213 54 and 59; and Case C-315/01 GAT [2003] ECR I-6351 63–64. See also Case C-448/01 EVN and
Wienstrom
[2003] ECR I-14527 37).

In my view, it is particularly relevant 'to stress the need for award criteria (i) to be linked to the subject matter of the contract (ie, to be ‘relevant’), and (ii) to allow the contracting authority actually to determine which tender is economically the most advantageous (ie, to be ‘enabling’)' [A Sanchez-Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 380]. The same reasoning must apply (functionally) to the selection of evaluation methods (for the reasons explained by AG Mengozzi, ie that they create the same effects). 

Quite frankly, in view of the clear example AG Mengozzi has given us (para 56), I would have no doubt that the use of 'soft quality metrics' is not enabling because it does not allow the contracting authority to identify, with an adequate level of precision and certainty, the most economically advantageous offer. Ultimately, thus, they should be banned as a matter of EU law--and, more generally, of good procurement practice. I do not expect the CJEU to go as far as to agree with this, but I think it would be the only consistent solution, and one that would do away with the problem, rather than trying to fix it simply with the remedy of more transparency--which seems to be the token fix-all solution in procurement law.

 

Excellent @E15Initiative Think Piece on Competition, Corruption and Trade dimensions of Public Procurement Regulation (Anderson, Kovacic and Müller: 2016)

The E15Initiative jointly implemented by the International Centre for Trade and Sustainable Development (ICTSD) and the World Economic Forum aims to generate strategic analysis and recommendations for government, business, and civil society geared towards strengthening the global trade and investment system for sustainable development. One of their great initiatives is to publish 'think pieces' to stimulate a more informed debate about how trade policy and institutions can best be adapted to the highly interconnected global economy of the 21st century.

One of these first think pieces is Anderson, Kovacic and Müller, Promoting Competition and Deterring Corruption in Public Procurement Markets: Synergies with Trade Liberalisation (Feb 2016). In this well-thought and persuasive piece, the authors expand on their previous thoughts in this area [“Ensuring integrity and competition in public procurement markets: a dual challenge for good governance,” in Arrowsmith & Anderson (eds), The WTO Regime on Government Procurement: Challenge and Reform (Cambridge University Press, 2011) 681-718] and make a compelling case for the careful integration and balancing of competition, corruption and trade considerations in public procurement regulation. Their abstract is as follows:
Efficient and effective government procurement markets are critical to economic growth, development, and the welfare of citizens. Yet, two very serious challenges bear on the performance of these markets: (i) ensuring integrity in the procurement process (preventing corruption on the part of public officials); and (ii) promoting effective competition among suppliers. Typically, these challenges are viewed as separate and distinct: the former (corruption) is treated primarily as a principal-agent problem in which the official (the “agent”) enriches himself/herself at the expense of the government or the public (the “principal”); while the latter (promoting competition) involves preventing collusive practices among potential suppliers and removing barriers that impede participation in relevant markets. This think-piece demonstrates that these two problems often overlap, for example where public officials are paid to turn a blind eye to collusive tendering schemes or to release information that facilitates collusion. As well, while transparency requirements are often central to efforts to eradicate corruption, such measures can, if not properly tailored, facilitate collusion and thereby undermine efforts to strengthen competition. Thus, careful coordination of measures to deter corruption and to foster competition is needed. Further, the think-piece argues that participation in the WTO Agreement on Government Procurement (GPA), or in similar regional arrangements, can play an important role both in promoting competition and in deterring corruption. The GPA enhances possibilities for healthy competition in relevant markets through participation by foreign-based or affiliated contractors. It helps to prevent corruption by requiring adherence to appropriate (tailored) transparency measures, and by exposing procurement activities to checks and balances including domestic review (“bid protest” or “remedy”) systems and international scrutiny.
Focusing on my pet topic of transparency in public procurement regulation and how this can affect competition in markets where public procurement is an important demand component, I am thrilled to read that Anderson, Kovacic and Müller stress that:
... increasingly, some challenges in the design of appropriate levels of transparency at the different stages of the procurement process have been recognised in both the procurement and competition communities. The OECD (2007) points out that: 
Governments need to find an adequate balance between the objectives of ensuring transparency, providing equal opportunities for bidders, and other concerns, in particular efficiency. The drive for transparency must therefore be tempered by making transparent what sufficiently enables corruption control. 
Indeed ... certain kinds of transparency measures can clearly facilitate collusion and, consequently, are problematic from a competition policy point of view (Marshalland Marx 2012; Sanchez Graells 2015A). While, for example, there may be no way around the need for publication of award criteria and technical specifications in public procurement if responsive tenders are to be solicited, their usefulness as tools for facilitating inter-supplier agreement needs to be recognised. Similarly, the publication of procurement outcomes, while enabling monitoring by the public as the “principal,” can also serve cartel participants in policing anti-competitive agreements and thereby enhancing cartel stability. Sanchez Graells (2015B) discusses specific possible concerns regarding transparency measures that may be associated with centralised procurement registers. 
A further complication is that optimal transparency levels may differ from country to country. “Solutions” that are potentially workable in some contexts may be highly problematic in others. For example, in jurisdictions where outright corruption problems are believed to be minimal, some lessening of transparency measures might be considered, for the sake of preventing collusion. On the other hand, in economies where corruption is rampant, any lessening of transparency measures may be a recipe for disaster. This explains why the very high priority that is given to transparency in public procurement processes in some countries in Eastern Europe may, in fact, be appropriate notwithstanding possible collusion facilitation concerns, at least as an interim measure. In any case, as explained below, both competition law enforcement and competition advocacy are clearly part of the solution (pp.9-10).
Of course, I am really thankful that they picked up on some of my recent research and I hope that their think piece will help disseminate these insights, which I consider extremely important for the proper design of public procurement rules in a way that is socially advantageous [for further discussion, see A Sanchez-Graells, 'The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives' (November 2013)].

Further thoughts on the competition implications of public contract registries: rebuttal to Telles

Some 10 days ago, Dr Pedro Telles and I engaged in another of our procurement tennis games. This time, the topic of contention is the impact of public contract registers on competition. I published a first set of arguments (here) and Pedro replied (here) mainly stressing that I had not paid enough attention to the potential upsides of such registers. 

Pedro advocated some potential sources of economic benefits derived from the use of public contract registers aimed at full transparency of tender and post-award procurement documentation, of which I would pick: 1) reduced opportunities for price arbitrage and 2) more scope for antitrust intervention by competition authorities possessing better data on what is going on in procurement markets. His arguments are well developed and can be seen as attractive. However, on reflection, there are still reasons why they do not necessarily work. In this post, I address these two issues and explain why I am still sceptical that they can result in any actual economic upsides. I am expecting Pedro to follow up with more arguments, which would be certainly welcome.

1) What about the 'single market theory = law of one price' approach?
The discussion on price arbitrage implicitly rests on the economic 'law of one price' whereby, in simple terms, a specific good should be traded at a single price in all locations. However, that 'economic law' rests on a large number of assumptions, which are particularly fit to commodity markets and ill suited to complex contracts for goods, or most definitely for services. 

In fact, even in highly competitive markets for commoditised products, the law of one price does not hold, at least if conceived in strong terms (ie strictly one price for a given good) instead of relaxing it to require a convergence or clustering of prices [for an interesting empirical paper stressing these insights, see K Graddy, 'Testing for Imperfect Competition at the Fulton Fish Market' (1995) 26(1) The RAND Journal of Economics 75-92]. 

Thus, focussing on arbitrage issues for anything other than very homogeneous commodities traded under standard contract clauses can fall foul of the due recognition of the assumptions underlying the 'law of one price'. Pedro acknowledges this: "yes, I am talking about a commodity, but then a lot of public procurement is made around commodities, including oil". On this point, however, I think data does not support his views.

According to the 2011 PwC-London Economics-Ecorys study for the European Commission 'Public procurement in Europe-Cost and effectiveness', commodities and manufactured goods only account for about 10% in value and 14% in number of procurement procedures subjected to the EU rules (see here page 45). Thus, the issue of price arbitrage is certainly not of first magnitude when the effects of public contract registers are assessed from an economic perspective.

(c) Anderson for eQuest
2) What about more intervention by competition authorities based on better (big) data?
On this point, Pedro and I agree partially. It is beyond doubt that, as he puts it, there are "potential upsides of having more data available in terms of cartel fighting. What can be done when reams and reams of contract data are available? You can spot odd behaviours. For example, you can corroborate a whistleblower account and you can then check if certain collusive practice/tactic is happening in other sectors as well." That is why, on my original post, I advocated for "[o]versight entities, such as the audit court or the competition authority, [to] have full access" to public contract registers.

However, as I also suggested (probably not in the clearest terms), in order to enable competition law enforcement on the basis of better data, there is no need for everyone to have (unlimited) access to that data. The only agent that needs access is the competition authority. More importantly, indiscriminate disclosure is not technically necessary, particularly when public contract registries are electronic and can be designed around technical devices giving differentiated access to information to different stakeholders.

This is an important issue. In a different but comparable context, disclosure obligations in the field of securities and financial regulation have been criticised for failing to address their excessive rigidity in certain multi-audience scenarios, where investors and competitors can access the same information and, consequently, firms have conflicting incentives to disclose and not to disclose specific bits of commercially sensitive information [for a very interesting discussion, see S Gilotta, 'Disclosure in Securities Markets and the Firm's Need for Confidentiality: Theoretical Framework and Regulatory Analysis' (2012) 13(1) European Business Organization Law Review 45-88].

In that setting, selective disclosure of sensitive information has been considered the adequate tool to strike a balance of interest between the different stakeholders wanting access to the information, and this is becoming a worldwide standard with a significant volume of emerging best practices [eg Brynn Gilbertson and Daniel Wong, 'Selective disclosure by listed issuers: recent “best practice” developments', Lexology, 9 Sept 2014].

Therefore, by analogy (if nothing else), I still think that 
Generally, what is needed is more granularity in the levels of information that are made accessible to different stakeholders. The current full transparency approach whereby all information is made available to everyone falls very short from the desired balance between transparency and competition goals of public procurement. A system based on enabling or targeted transparency, whereby each stakeholder gets access to the information it needs for a specific purpose, is clearly preferable.

Why are public contracts registers problematic?

This past week, I had the pleasure and honour of starting my participation in the European Commission Stakeholder Expert Group on Public Procurement (PPEP). The first batch of discussions  revolved, firstly, around the use of the best price quality ratio (BPQR) award criterion and, secondly, around the use of transparency tools such as public contract registers. 

This second topic is of my particular interest, so I have tried to push the discussion a step forward in a document circulated to the PPEP Members. Given the general nature of the discussion document, I thought it could be interesting to post it here. Any comments will be most welcome and will help enrich the views presented to the European Commission in the next meeting. Thank you for reading and commenting.

Centralised Procurement Registers and their Transparency Implications—Discussion Non-Paper for the European Commission Stakeholder Expert Group on Public Procurement ~ Dr Albert Sanchez-Graells[1]

Background
In its efforts to increase the effectiveness of EU public procurement law in practice and to steer Member States towards the mutual exchange and eventual adoption of best practices,[2] the European Commission has identified the emerging trend of creating public contracts registers as an area of increasing interest.[3] Such registers go beyond the well-known electronic portals of information on public contract opportunities, such as TED[4] at EU level or Contracts Finder in the UK,[5] and aim to publish very detailed tender and contractual information, which in some cases include aspects of the competition generated prior to the award of the contract (such as names of the undertakings that submitted tenders) and the actual contractual documents signed by the parties. Such registers exist at least in Portugal,[6] Italy[7] and Slovakia.[8] The European Commission is interested in assessing the benefits and risks that such public contracts registers generate, particularly in terms of transparency of public tendering and the subsequent management of public contracts. This discussion non-paper aims to assess such benefits and risks and to sketch some proposals for risk mitigation measures.

Why are public contract registries created?
Traditional registers of contract opportunities are fundamentally based on transaction cost theory insights and aim to reduce the search costs that undertakings face in trying to identify opportunities to supply the public sector. By making the information readily available, contracting authorities expect to receive expressions of interest and/or offers from a larger number of undertakings, thus increasing competition for public contracts and reducing the information asymmetries that affect contracting authorities themselves. In the end, that sort of pre-award transparency mechanism aims at enabling the contracting authority to benefit from competition. It also creates the additional benefit of avoiding favouritism and corrupt practices in the selection of public suppliers and, in the context of the EU’s internal market, supports the anti-discrimination agenda embedded in the basic fundamental freedoms of movement of goods, services and capital through pan-European advertisement.

The justification for ‘advanced’ public contracts registers that include post-award transparency mechanisms is more complex and, in short, this type of registers is created for a number of reasons that mainly include objectives at two different levels:

1. At a general level, these registers aim at
  • Reacting to perceived shortcomings in public governance, particularly in the aftermath of corruption scandals, or as part of efforts to strengthen public administration processes
  • Complementing ‘traditional’ public audit and oversight mechanisms through enhanced access to information by stakeholders and civil society organisations, as well as enabling more intense scrutiny by the press, in the hope of ‘private-led’ oversight and audit. The possibilities that digitisation and big data create in this area of public governance are a significant driver or steer to the development of these registers.[9]
2. At a specific level, these registers aim at
  • Facilitating contract management oversight and creating an additional layer of public exposure of contract-related decision-making, thus expanding the scope of procurement transparency beyond the award phase
  • Facilitating private enforcement of public procurement rules by allowing interested parties to prompt administrative and/or judicial review of specific procurement decisions,[10] both pre-award and during the execution phase
Generally, then, these additional transparency mechanisms are not intended to foster competition. Their main goal and justification is to preserve the integrity of public contract administration and to increase the robustness of anticorruption tools by facilitating social or private oversight. They significantly increase the levels of transparency already achieved through pre-award disclosure mechanisms and, in simple terms, they aim at creating full transparency of public procurement and public contract management, basically for the purposes of legitimising public expenditure by means of increased (expected) accountability as a result of such full transparency and tougher oversight.

Why are public contract registries problematic from a competition perspective?
Public contract registries are problematic precisely due to the levels of transparency they create. Economic theory has conclusively demonstrated that the levels of transparency created by public procurement rules and practices (such as these registers) facilitate collusion and anticompetitive behaviour between undertakings, thus eroding (and potentially negating) the benefits contracting authorities can obtain from organising tenders for public contracts.[11] This is an uncontroversial finding that led the OECD to stress that “[t]he formal rules governing public procurement can make communication among rivals easier, promoting collusion among bidders … procurement regulations may facilitate collusive arrangements”.[12]

The specific reasons why and conditions under which increased transparency facilitates collusion are beyond the scope of this discussion non-paper, but suffice it to stress here that transparency will be particularly pernicious when it allows undertakings that are already colluding to identify the detailed conditions under which they did participate in a particular bid or refrained from participating (by, for instance, disclosing the names of participating tenderers and the specific conditions of the winning tender).[13] Moreover, conditions of full transparency are not only problematic in relation to already existing cartels, but they are also troublesome regarding the creation of new cartels because increased transparency alters the incentives to participate in bid rigging arrangements.[14]

Furthermore, full transparency can also damage competition in industries with strong dominant undertakings. In those settings, transparency may not lead to cartelisation, but it can facilitate exclusionary strategies by the dominant undertaking by allowing them to focus exclusionary practices (such as predatory pricing) in markets or segments of the market where it detects entry by new rivals or innovative tenderers. Even in cases where collusion or price competition may not be a prime issue, full transparency can create qualitative distortions of competition, such as technical levelling[15] or reduced participation due to undertakings’ interest in protecting business secrets (as discussed below). Overall, it is beyond doubt that excessive transparency in public procurement is self-defeating because it erodes or nullifies any benefits derived from the organisation of public tenders.

All these economic insights led the OECD to adopt a formal Recommendation to prompt its members to “assess the various features of their public procurement laws and practices and their impact on the likelihood of collusion between bidders. Members should strive for public procurement tenders at all levels of government that are designed to promote more effective competition and to reduce the risk of bid rigging while ensuring overall value for money”.[16] Thus the impact of increased procurement transparency on the likelihood of collusion and cartelisation in procurement markets, as well as the other potential negative impacts on the intensity or quality of competition, requires closer scrutiny and the competition implications of excessive transparency cannot simply be overseen in the name of anti-corruption goals.[17] Not least, because a large number of cartels discovered and prosecuted by competition authorities involve public procurement markets[18]—which demonstrates that the economic impact of such collusion-facilitative implications of full transparency is not trivial. 

Estimating the economic impact of cartels in public procurement is a difficult task.[19] However, generally accepted estimates always show that the negative economic effect is by no means negligible and that anticompetitive overcharges can easily reach 20% of contract value.[20] Thus, particularly in view of the Europe 2020 goal to ensure ‘the most efficient use of public funds’,[21] issues of excessive transparency in public procurement markets need to be addressed so as to avoid losses of efficiency derived from the abnormal operation of market forces due to procurement rules and practices.

This does not mean that transparency needs to be completely abandoned in the public procurement setting, but a more nuanced approach that accommodates competition concerns is necessary. As has been rightly stressed, “transparency measures should at least be limited to those needed in order to enhance competition and ensure integrity, rather than being promoted as a matter of principle. Transparency should be perceived as a means to an end, rather than a goal in itself”.[22] This is in line with the OECD’s specific recommendation that “[w]hen publishing the results of a tender, [contracting authorities] carefully consider which information is published and avoid disclosing competitively sensitive information as this can facilitate the formation of bid-rigging schemes, going forward”.[23] The final section of this non-paper presents some normative recommendations to that purpose, which highlight much needed restrictions to the promotion of full transparency as a matter of principle.

Are there other reasons why procurement registries can be problematic?
As briefly mentioned above, another source of possible negative impacts derived from public contract registries is their potential chilling effect on undertakings keen to protect their business secrets. It is often stressed that tenders contain sensitive information and that disclosure of that information can damage the commercial interests of bidders if those secrets are at risk of being disclosed through the public contracts registries or otherwise.[24] Thus, undertakings can either decide not to participate in particularly sensitive tenders, or submit offers and documentation in such a way as to keep their secrets concealed, hence diminishing their quality or increasing the information cost/asymmetry that the contracting authority needs to overcome in their assessment. Either way, these business secret protective strategies reduce the intensity and quality of the competition. Moreover, transparency of certain elements of human resources-related information (particularly in view of the increasing importance of work teams in the area of services procurement) not only can trigger data protection concerns,[25] but also facilitate unfair business practices such as the poaching of key employees.

However, despite the clear existence of business secret and commercial interest justifications for the preservation of certain levels of secrecy, there is a tendency to minimise the relevance of these issues by creating a private interest-public interest dichotomy and stressing the relevance of public (anti-corruption) goals. This is problematic. What is often overlooked is that contracting authorities have themselves a commercial interest in keeping business secrets protected. That interest derives immediately from their need to minimise the abovementioned chilling effect (ie not crowding out or scaring away undertakings wary of excessive disclosure), so that competition remains as strong as possible. And such interest in avoiding excessive disclosure also derives, in the mid to long-term, from the need not to thwart innovation by means of technical levelling or de facto standard setting.

These issues were recently well put in the context of UK litigation concerning a freedom of information request that the contracting authority rejected on the basis of relevant business secret and commercial interest protection. As clarified by the First Tier Tribunal,
There is a public interest in maintaining an efficient competitive market for leisure management systems. If the commercial secrets of one market entity were revealed, its competitive position would be eroded and the whole market would be less competitive. As the Court of Appeal put it in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council and others [2012] P.T.S.R. 185 at [111], a company’s confidential information is often “the life blood of an enterprise”. The [Information Commissioner’s Office] argued that this is particularly so in an industry such as the provision of leisure management systems because such systems are a complex amalgam of technologies, customer support networks, and user interfaces, which involve elements individual to particular companies. Those individual elements drive competition to the benefit of public authorities and consumers.[26]
Thus, the protection of business secrets and commercial interests should not be seen as a limitation of the public (anti-corruption) interest in the benefit of private interests, but as a balancing exercise between two competing public interest goals: efficiency and integrity of procurement. Once this realignment of goals is understood, restrictions of public procurement transparency based on competition considerations should receive support also from a public governance perspective.

A final consideration in terms of potential negative impacts of public contract registries derives from the way they are financed. At least in the case of Italy, economic operators are required to pay fees towards the funding of the relevant public contract registry when they first participate in any given tender. This becomes a financial burden linked to procurement participation that can have clear chilling effects, particularly for SMEs with limited financial resources. It is widely accepted that financial barriers to participation should be suppressed as a matter of best practice[27]—and, in certain occasions, as a matter of compliance with internal market regulation as well. Thus, the creation of any sort of public contract registry which funding requires upfront payments from interested undertakings should not be favoured.

How could competition and confidentiality concerns be embedded in the design of public contract registries, so that their risks are minimised?

The discussion above supports a nuanced approach to the level of transparency actually created by public contract registries, which needs to fall short of the full transparency paradigm in which they have been conceived and started to be implemented. As a functional criterion, only the information that is necessary to ensure proper oversight and the effectiveness of anti-corruption measures should be disclosed, whereas the information that can be most damaging for competition should be withheld. 

Generally, what is needed is more granularity in the levels of information that are made accessible to different stakeholders. The current full transparency approach whereby all information is made available to everyone falls very short from the desired balance between transparency and competition goals of public procurement. A system based on enabling or targeted transparency, whereby each stakeholder gets access to the information it needs for a specific purpose, is clearly preferable.

In more specific terms, the following normative recommendations are subjected to further discussion. They are by no means exhaustive and simply aim to specify the sort of nuanced approach to disclosure of public procurement information that is hereby advocated.

  • Public contract registers should not be fully available to the public. Access to the full registry should be restricted to public sector officials under a strong duty of confidentiality protected by appropriate sanctions in cases of illegitimate disclosure.
  • Even within the public sector, access to the full register should be made available on a need to know basis. Oversight entities, such as the audit court or the competition authority, should have full access. However, other entities or specific civil servants should only access the information they require to carry out their functions.
  • Limited versions of the public contract registry that are made accessible to the public should aggregate information by contracting authority and avoid disclosing any particulars that could be traced back to specific tenders or specific undertakings.
  • Representative institutions, such as third sector organisations, or academics should have the opportunity of seeking access to the full registry on a case by case basis where they can justify a legitimate or research-related interest. In case of access, ethical approval shall be obtained, anonymization of data attempted, and specific confidentiality requirements duly imposed.
  • Delayed access to the full public registry could also be allowed for, provided there are sufficient safeguards to ensure that historic information does not remain relevant for the purposes of protecting market competition, business secrets and commercial interests.
  • Tenderers should have access to their own records, even if they are not publicly-available, so as to enable them to check their accuracy. This is particularly relevant if public contract registries are used for the purposes of assessing past performance under the new rules.
  • Big data should be published on an anonymised basis, so that general trends can be analysed without enabling ‘reverse engineering’ of information that can be traced to specific bidders.
  • The entity in charge of the public contracts registry should regularly publish aggregated statistics by type of procurement procedure, object of contract, or any other items deemed relevant for the purposes of public accountability of public buyers (such as percentages of expenditure in green procurement, etc).
  • The entity in charge of the public contracts registry should develop a system of red flag indicators and monitor them with a view to reporting instances of potential collusion to the relevant competition authority.


[1] Senior Lecturer in Law, University of Bristol Law School and Member of the European Commission Stakeholder Expert Group on Public Procurement (E02807) (2015-2018). This paper has been prepared for discussion within the Expert Group, following an initial exchange of ideas in the meeting held in Brussels on 14 September 2015. The views presented on this paper are my own and in no way bind any of the abovementioned institutions. Comments and suggestions welcome: a.sanchez-graells@bristol.ac.uk.
[2] For discussion of this regulatory and governance approach in the area of public procurement, see C Harlow and R Rawlings, Process and Procedure in EU Administration (Oxford, Hart, 2014) 142-169.
[3] Point 2 ‘’contract registers to enhance full transparency of data related to public procurement”, included in the agenda for the Stakeholder Expert Group on Public Procurement of 14 September 2015, available at http://ec.europa.eu/internal_market/publicprocurement/docs/expert-group/150914-agenda_en.pdf.
[4] Tenders Electronic Daily (TED) http://ted.europa.eu/TED/main/HomePage.do.
[6] Base: Contratos Publicos Online, http://www.base.gov.pt/Base/pt/Homepage.
[7] Banca Dati Nazionale dei Contratti pubblici, http://portaletrasparenza.avcp.it/microstrategy/html/index.htm.
[8] A case study based on the Slovakian Online Central Register of Contracts is available at https://joinup.ec.europa.eu/community/epractice/case/slovakian-online-central-register-contracts.
[9] See eg the efforts of the Sunlight Foundation by means of its Procurement Open Data Guidelines http://sunlightfoundation.com/procurement/opendataguidelines. See also the Open Contracting Data Standard project http://standard.open-contracting.org/.
[10] For discussion, see A Sanchez-Graells, “The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives” (November 2013), http://ssrn.com/abstract=2353005.
[11] A Sanchez-Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 73-75.
[12] OECD, Public Procurement: Role of Competition Authorities (2007) 7, available at http://www.oecd.org/competition/cartels/39891049.pdf. For discussion, see A Sanchez-Graells, “Prevention and Deterrence of Bid Rigging: A Look from the New EU Directive on Public Procurement”, in G Racca & C Yukins (eds), Integrity and Efficiency in Sustainable Public Contracts (Brussels, Bruylant, 2014) 171-198, available at http://ssrn.com/abstract=2053414.
[13] For discussion, see A Heimler, “Cartels in Public Procurement” (2012) 8(4) Journal of Competition Law & Economics 849-862 and SE Weishaar, Cartels, Competition and Public Procurement. Law and Economics Approaches to Bid Rigging (Cheltenham, Edward Elgar, 2013) 28-36.
[14] P Gugler, “Transparency and Competition Policy in an Imperfectly Competitive World”, in J Forssbaeck & L Oxelheim (eds), Oxford Handbook of Economic and Institutional Transparency (Oxford, OUP, 2014) 144, 150.
[15] Sanchez-Graells, Public Procurement and the EU Competition Rules (n 11) 76.
[16] OECD, Recommendation on Fighting Bid Rigging in Public Procurement (2012), available at http://www.oecd.org/daf/competition/RecommendationOnFightingBidRigging2012.pdf. For discussion, see A Sanchez-Graells, “Public Procurement and Competition: Some Challenges Arising from Recent Developments in EU Public Procurement Law”, in C Bovis (ed), Research Handbook on European Public Procurement (Cheltenham, Elgar, 2016). Available at http://ssrn.com/abstract=2206502.
[17] For discussion, see RD Anderson, WE Kovacic and AC Muller, ‘Ensuring integrity and competition in public procurement markets: a dual challenge for good governance’ in S Arrowsmith & RD Anderson (eds), The WTO Regime on Government Procurement: Challenge and Reform (CUP, 2011) 681-718.
[18] This is true in all jurisdictions. See KL Haberbush, “Limiting the Government’s Exposure to Bid Rigging Schemes: A Critical Look at the Sealed Bidding Regime” (2000–2001) 30 Public Contract Law Journal 97, 98; and RD Anderson & WE Kovacic, ‘Competition Policy and International Trade Liberalisation: Essential Complements to Ensure Good Performance in Public Procurement Markets’ (2009) 18 Public Procurement Law Review 67. See also A Sanchez-Graells, “Public Procurement: A 2014 Updated Overview of EU and National Case Law” (2014). e-Competitions: National Competition Laws Bulletin, No. 40647. Available at http://ssrn.com/abstract=1968371.
[19] See the debate around the proposal to create a rebuttable presumption of overcharge at 20% in the Directive on actions for breach of the EU antitrust rules; Commission Staff Working Document SWD(2013) 203 final para 88, http://ec.europa.eu/competition/antitrust/actionsdamages/impact_assessment_en.pdf. However, given the controversy on specific figures, the final version of Art 17 of Directive 2014/104 includes an unquantified presumption. Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union [2014] OJ L 349/1.
[20] For a very modest estimation of cartel overcharges in the environment of 17%, see M Boyer & R Kotchoni, “How Much Do Cartels Overcharge?” (2014) Toulouse School of Economics Working Paper TSE‐462, available at http://www.tse-fr.eu/sites/default/files/medias/doc/wp/etrie/wp_tse_462_v2.pdf.
[21] Communication from the Commission of 3 March 2010, Europe 2020 A strategy for smart, sustainable and inclusive growth, COM (2010) 2020 final para 4.3, p. 24, available at http://ec.europa.eu/eu2020/pdf/COMPLET%20EN%20BARROSO%20%20%20007%20-%20Europe%202020%20-%20EN%20version.pdf. For discussion, see A Sanchez-Graells, “Truly competitive public procurement as a Europe 2020 lever: what role for the principle of competition in moderating horizontal policies?” (2016) 22(2) European Public Law Journal, available at http://ssrn.com/abstract=2638466.
[22] RD Anderson and AC Muller, “Promoting Competition and Deterring Corruption in Public Procurement markets: Synergies with Trade Liberalization”, draft paper to be published in the "E15 Expert Group on Competition Policy" (a joint initiative/facility of the World Economic Forum and the International Centre for Trade and Sustainable Development) 13 (on file with author).
[23] OECD, Guidelines for Fighting Bid Rigging in Public Procurement (2009) 7, available at http://www.oecd.org/competition/cartels/42851044.pdf.
[24] For discussion, see C Ginter, N Parrest & M-A Simovart, “Requirement to Protect Business Secrets and Disclose Procurement Contracts under Procurement Law” (2013) IX Juridica 658-665.
[25] These are beyond the scope of this discussion non-paper.
[26] Sally Ballan v Information Commissioner EA/2015/0021 (28 July 2015) para [25(c)], available at http://www.informationtribunal.gov.uk/DBFiles/Decision/i1609/Ballan,%20Sally%20EA.2015.0021%20%2828.07.15%29.pdf.
[27] Sanchez-Graells, Public Procurement and the EU Competition Rules (n 11) 280-281.

Good decision on non-disclosure of confidential information in public procurement, despite use of Freedom of Information Act

Helen Prandy of Procurement Portal has blogged about an interesting case regarding the always difficult balance between transparency and the protection of confidential information / business secrets in a public procurement environment. These are issues that have popped up repeatedly in the commentary of the Public Contracts Regulations 2015 (PCR2015) [see eg regs.21, 53, 55, 79, 83, 84, 86108, 112] and have significant practical relevance.

The case is Sally Ballan v Information Commissioner EA/2015/0021, where the First Tier Tribunal, General Regulatory Chamber (Information Rights) (FTT) decided against the appellant and confirmed the previous Information Commissioner (ICO)'s decision not to allow disclosure of a successful bid in a procurement process for the delivery of a “Leisure Management System”. This is interesting because the claim for access to information was not based on public procurement rules, but on the possibility of filing 'freedom of information requests' under the Freedom of Information Act 2000 (FOIA). In her post 'Commercial Interests: where does the balance lie under FOIA?', Helen Prady offers more background.

From a procurement transparency perspective, it is interesting to highlight the interpretation of s.43(2) FOIA upheld by the FTT, which allows public authorities to deny disclosure under an information request on the basis that the '[i]nformation is exempt ... if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it)'. 

This is functionally very close to the possibilities foreseen under public procurement rules to withhold information where its release would prejudice the legitimate commercial interests of a particular economic operator, whether public or private. Even if s.43(2) FOIA does not include an explicit reference to disclosure of information that 'might prejudice fair competition between economic operators' (as public procurement rules do), it should be stressed that the interpretation and construction of this section of the FOIA is broad, and that it must encompass those sort of considerations under the public interest test [as further developed by Paul Gibbons of FOIMan here].  

Indeed, in the interpretation of s.43(2) FOIA by the FTT in Sally Ballan v Information Commissioner, this is particularly clear in paras [25(c), emphasis added] and [29], whereby
The ICO sets out factors tending towards public interest in not disclosing the information as: (c) There is a public interest in maintaining an efficient competitive market for leisure management systems. If the commercial secrets of one market entity were revealed, its competitive position would be eroded and the whole market would be less competitive. As the Court of Appeal put it in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council and others [2012] P.T.S.R. 185 at [111], a company’s confidential information is often “the life blood of an enterprise”. The ICO argued that this is particularly so in an industry such as the provision of leisure management systems because such systems are a complex amalgam of technologies, customer support networks, and user interfaces, which involve elements individual to particular companies. Those individual elements drive competition to the benefit of public authorities and consumers.

In terms of factors tending towards public interest in not disclosing the information, we accept and adopt all points made by the ICO in paragraph 25 above. An additional factor would include an interest in not disclosing any information to the extent that it contained trade secrets of the relevant tenderers.
Remarkably, the approach followed by the FTT under s.43(2) FOIA is convergent with that recently stressed by the General Court in European Dynamics Luxembourg and Others v Commission, T-536/11, EU:T:2015:476 (see here), which seems to indicate a clear trend towards a rationalisation of the transparency requirements in a public procurement setting in the right direction. For further discussion of the arguments in favour of such limitation of transparency in the public procurement setting, see A Sanchez-Graells, The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives (University of Leicester School of Law Research Paper No. 13-11, 2013).

What level of transparency for award/call-off decisions within framework agreements?

During several recent conversations with participants at the Global Revolution conference, and particularly with my colleague Dr Marta Andrecka and some members of the European Institutions, I have been asked repeatedly about my views on the level of transparency that should apply to award/call-off decisions within framework agreements. 

There is no doubt that full transparency is mandated regarding the conclusion of the framework agreement itself and, subject to my general concerns about excessive transparency (here), I agree that this is the existing legal situation. However, there is significant uncertainty and an ongoing practical debate regarding the level of 'intra-framework' transparency that the EU rules require (as well as the applicability of rules on award criteria to those decisions, but that is a topic for another day).

There is no rule that expressly covers this issue from the perspective of the individual rights of information of contractors/tenderers either under Article 55 of Directive 2014/24 or reg.55 of the Public Contracts Regulations 2015 (PCR2015), which only make reference to transparency/debriefing obligations related to the conclusion (or not) of the framework agreement itself, but not the subsequent awards/call-offs within the framework. This creates uncertainty as to the applicability of these (or analogous) rights to be informed in relation to intra-framework awards/call-offs [for in-depth discussion, see S Arrowsmith, The Law of Public and Utilities Procurement. Regulation in the EU and UK, 3rd edn., vol. 1 (London, Sweet & Maxwell, 2014) 1153 and ff, esp 1156-57, and 1347].

More generally, when it comes to transparency of the awards/call-offs within framework agreements, the general transparency rules are clearly limited in Art 50 Dir 2014/24, according to which "[i]n the case of framework agreements... contracting authorities shall not be bound to send a notice of the results of the procurement procedure for each contract based on that agreement. Member States may provide that contracting authorities shall group notices of the results of the procurement procedure for contracts based on the framework agreement on a quarterly basis. In that case, contracting authorities shall send the grouped notices within 30 days of the end of each quarter." 

As I criticised in relation to reg.50 PCR2015 [see here], the drafting of this clause may make it susceptible of being interpreted as fully discretionary for Member States, which could opt  (like the UK) for not imposing any sort of transparency obligation (quarterly, or otherwise) connected to the results of the procurement procedure for contracts based on the framework agreement. I argued that such an approach could be an infringement of EU law and, more specifically, the requirements of the principle of transparency in Art 18(1) Dir 2014/24.

To my surprise (I should have known, though), the uncertainty seems to be much more limited when it comes to the draft new procurement rules for the European Institutions under the foreseen 2016 Financial Regulation (proposal available here), which Art 113 [equivalent to Art 55 Dir 2014/24] expressly excludes almost all 'intra-framework' transparency when it comes to award/call-off decisions. According to that provision,
2. The contracting authority shall notify all candidates or tenderers whose requests to participate or tenders are rejected of the grounds on which the decision was taken, as well as the duration of the standstill period referred to in Article 118(2). For the award of specific contracts under a framework contract with reopening of competition, the contracting authority shall inform the tenderers of the result of the evaluation.

3. The contracting authority shall inform each tenderer who is not in a situation of exclusion, whose tender is compliant with the procurement documents and who makes a request in writing of any of the following: (a) the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded, except in the case of a specific contract under a framework contract with reopening of competition;
(emphasis added).
This comes to determine that there is no transparency obligation whatsoever for award/call-off decisions that do not follow a 'mini-competition' and, in even in the case of such reopening of competition, the transparency obligation is limited to the evaluation (likely of their own tender), but does not seem to cover other aspects of the award/call-off decision. 

The European Court of Auditors criticised this situation in its January 2015 Opinion on the draft revised Financial Regulation (available here) in the following terms: "The proposed wording of Article 113(2)(2) and (3)(a) would not require the contracting authority, in the case of specific contracts awarded under a framework contract with reopening of competition, to notify the contractors whose tenders have been rejected of the reasons for their rejection, the relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded. This exception to the rules governing transparency and the obligation to state reasons cannot be justified" (para 37, emphasis added).

In my view, this is an indication that my previous assessment regarding the lack of compatibility with EU law of the total lack of transparency of intra-framework awards is not shared by the European Commission (unless that Institution is looking to impose stricter standards to Member States' procurement than to its own and that of the rest of European Institutions). It could also be that DG BUDGET has a more process-oriented (buyer) approach to procurement regulation than DG GROWTH, which would explain the difference in willingness to (self)impose transparency obligations. However, be it as it may, I still think that this is not a desirable regulatory option and I would like to see the proposal for a new Financial Regulation amended on this point.

I would not favour full transparency of intra-framework award decisions. However, I accept that contractors included in a framework agreement (and third parties) should be given information regarding the evolution of the intra-framework, at least of a 'historical' and overall nature, so that they can have a rough idea of how the implementation of the contract is being carried out. 

Moreover, there is no clear reason why frameworks would require being less transparent than dynamic purchasing systems (which are, in the end, open frameworks), particularly because the contracting authority is in a good position to identify any instances of intra-framework collusion in which the contractors could engage on the basis of the periodical reports they may get. 

Consequently, I would favour the creation of a system of delayed and grouped (quarterly) reporting of the intra-framework award/call-off decisions, along the lines of what Art 50(3) Dir 2014/24 and reg.50(5) PCR2015 establish for dynamic purchasing systems.

CJEU offers clarification on identification and assessment of conflicts of interest in public procurement (C-538/13)

In its Judgment in eVigilo, C-538/13, EU:C:2015:166, the Court of Justice of the European Union (CJEU) has offered very much needed guidance on the assessment of conflicts of interest in public procurement, as well as the degree of forcefulness with which contracting authorities must tackle such important issue. 

Its guidance will be very relevant in the interpretation and application of Article 24 of Directive 2014/24 on conflicts of interest, as well as the related provision on exclusion of economic operators affected by conflicts of interest [art 57(4)(e) dir 2014/24]. Thus, the eVigilo Judgment and the CJEU's reasoning deserve some close analysis.

Concerning the issue of conflict of interest (there were others to be addressed, particularly regarding the time limits for the challenge of a procurement decision), it is worth highlighting that eVigilo challenged the award on the basis of a bias of the experts who evaluated the tenders due to the existence of professional relations between them and the specialists referred to in the winning tender. 

More specifically, eVigilo claimed that the specialists referred to in the tender submitted by the successful tenderers were colleagues at the Technical University of Kaunas (Kauno technologijos universitetas) of three of the six experts of the contracting authority who drew up the tender documents and evaluated the tenders. In its view, this was sufficient to strike the award decision down.

This is a situation that, in my view, would now be clearly covered by Art 24 Dir 2014/24 (not applicable to the conflict time-wise), whereby "conflicts of interest shall at least cover any situation where staff members of the contracting authority or of a procurement service provider acting on behalf of the contracting authority who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure" (emphasis added). 

Hence, the CJEU's assessment of the claim is highly relevant. After reiterating its case law on the principles of equality, non-discrimination and transparency, and stressing that "[u]nder the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity", the CJEU considered that
37 The finding of bias on the part of an expert requires in particular the assessment of facts and evidence that comes within the competence of the contracting authorities and the administrative or judicial control authorities.
38 It should be pointed out that neither Directive 89/665 nor Directive 2004/18 contains specific provisions in that regard
[and, it is worth adding, Directive 2014/24 does not contain any specific procedural rules as to how to assess these issues either].
39 The Court has consistently held that, in the absence of EU rules governing the matter, it is for every Member State to lay down the detailed rules of administrative and judicial procedures for safeguarding rights which individuals derive from EU law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see judgment in Club Hotel Loutraki and Others, C‑145/08 et C‑149/08, EU:C:2010:247, paragraph 74 and the case-law cited).
40 In particular, the detailed procedural rules governing the remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities must not compromise the effectiveness of Directive 89/665 (see judgment in Uniplex (UK), C‑406/08, EU:C:2010:45, paragraph 27 and case-law cited).
41 It is not, as a general rule, contrary to those principles for an expert’s bias to be established in a Member State solely on the basis of an objective situation in order to prevent any risk that the public contracting authority could be guided by considerations unrelated to the contract in question and liable, by virtue of that fact alone, to give preference to one tenderer.
42 Concerning the rules on evidence in that regard, it should be pointed out that ... the contracting authorities are to treat economic operators equally and non-discriminatorily and to act in a transparent way. It follows that they are assigned an active role in the application of those principles of public procurement.
43 Since that duty relates to the very essence of the public procurement directives (see judgment in Michaniki, C‑213/07, EU:C:2008:731, paragraph 45), it follows that the contracting authority is, at all events, required to determine whether any conflicts of interests exist and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. It would be incompatible with that active role for the applicant to bear the burden of proving, in the context of the appeal proceedings, that the experts appointed by the contracting authority were in fact biased. Such an outcome would also be contrary to the principle of effectiveness and the requirement of an effective remedy ... in light, in particular, of the fact that a tenderer is not, in general, in a position to have access to information and evidence allowing him to prove such bias.
44 Thus, if the unsuccessful tenderer presents objective evidence calling into question the impartiality of one of the contracting authority’s experts, it is for that contracting authority to examine all the relevant circumstances having led to the adoption of the decision relating to the award of the contract in order to prevent and detect conflicts of interests and remedy them, including, where appropriate, requesting the parties to provide certain information and evidence.
45 Evidence such as the claims in the main proceedings relating to the connections between the experts appointed by the contracting authority and the specialists of the undertakings awarded the contract, in particular, the fact that those persons work together in the same university, belong to the same research group or have relationships of employer and employee within that university, if proved to be true, constitutes such objective evidence as must lead to a thorough examination by the contracting authority or, as the case may be, by the administrative or judicial control authorities.
46 Subject to compliance with the obligations under EU law, and specifically with those referred to in paragraph 43 above, the concept of ‘bias’ and the criteria for it are to be defined by national law. The same applies to the rules relating to the legal effects of possible bias. Thus, it is for national law to determine whether, and if so to what extent, the competent administrative and judicial authorities must take into account the fact that possible bias on the part of the experts had no effect on the decision to award the contract
(C-538/13, paras 37 to 46, emphasis added).
In my view, the CJEU has handed down a very straightforward Judgment that clearly favours (or, actually, imposes) a strong reaction to allegations of bias and conflict of interest, and which sets a very high threshold regarding the relevant duty of the contracting authority to investigate and to act. Ultimately, this derives from the obligation of contracting authorities to enforce the general principles of procurement (now in art 18 dir 2014/24, which includes the principle of competition) and its diligent administration implications.

The reader will allow me to submit that this is fundamentally in line with my interpretation of the rules on conflict of interest under Art 24 Dir 2014/24 as developed in Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 369-373, which I reproduce below. 

Consequently, I cannot but welcome the CJEU's eVigilo Judgment and hope that Member States will take it into due account in the transposition of the rules of Dir 2014/24 into their domestic legal orders.




As a preliminary issue with potential ramifications regarding all the decisions to be adopted at the stage of evaluation of the tenders and award of the contract—although, as mentioned previously, it is also relevant in various previous phases related inter alia to the qualitative selection of tenderers—in our view, contracting authorities are under an obligation to adopt an approach to the development of these tasks that is both neutral and possibilistic. The existence of a duty of neutrality or ‘impartiality’ of procurement procedures—and, implicitly, of contracting authorities—as a specification of the principles of equal treatment, of the ensuing transparency obligation, and of the principle of competition is a clear requirement of the system envisaged in the directives,[1] and has been hinted at in the EU case law by requiring that ‘the impartiality of procurement procedures’ is ensured.[2]
The existence of such a neutrality requirement is fundamental, and the EU judicature has consistently stressed the obligation of contracting authorities to guarantee equality of opportunity of tenderers at each and every stage of the tendering procedure.[3] Importantly, it should be stressed that

Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions (emphasis added).[4] Moreover, this ultimately rests on the clear position that a system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators.[5]

In this regard, it has been emphasised that contracting authorities are under a particular duty to avoid conflicts of interest[6] with the result that, after the discovery of such a conflict of interests between a member of the evaluation committee and one of the tenderers, the contracting authority must act with due diligence and on the basis of all the relevant information when formulating and adopting its decision on the outcome of the procedure for the award of the tender at issue in order to comply with the basic obligation of ensuring equality of opportunity.[7] This might require different reactions from the contracting authority, depending on the circumstances of the case, but should always be oriented towards preventing instances of discriminationie, not favouring, or discriminating against, a tenderer as a result of the bias of the member of the evaluation committee.[8] Therefore, there should be no doubt as to the neutrality requirements in the conduct of the evaluation of tenders and award of public contracts. This is now particularly clear in light of the provisions in article 24 of Directive 2014/24, which expressly requires that Member States ensure that contracting authorities take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.[9] This measure is complemented by the new ground for exclusion of economic operators in clonflict of interest (as discussed above §II.A.vii). Consequently, under the 2014 rules, contracting authorities are under a very clear mandate to detect, investigate and effectively tackle conflicts of interest.
As regards the adoption of a ‘possibilistic’ or anti-formalistic approach—oriented towards maintaining the maximum possible degree of competition by avoiding the rejection of offers on the basis of too formal and/or automatic rejection criteria—it is important to underline that the relevant case law has already offered some guidance that points in this direction by stressing that ‘the guarantees conferred by the European Union legal order in administrative proceedings include, in particular, the principle of good administration, involving the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case’ (emphasis added)[10]—which, in the case of public procurement, should be interpreted as requiring contracting authorities to exercise due care in the evaluation of the bids submitted by tenderers.[11] To be sure, the obligation of contracting authorities to review the bids for possible mistakes and to contact tenderers to seek for correction is limited as a mandate of the principle of non-discrimination (below §II.B.ix); but the scope for clarification of the tenders and for the establishment of rules allowing for a flexible treatment of formally non-fully compliant bids (on this, below §II.B.iv), support the adoption of a possibilistic approach towards the evaluation of bids as a specification or particularisation of the duty of due care or diligent administration that is required of contracting authorities.
In this regard, as reasoned by EU case law, the evaluating team is under an obligation to conduct the revision of the bids in accordance with the principle of good administration and is, consequently, under an obligation to exercise the power to ask for additional information in circumstances where the clarification of a tender is clearly both practically possible and necessary, and as long as the exercise of that duty to seek clarification is in accordance with the principle of equal treatment.[12] It is submitted that this means that the evaluating team is to adopt an anti-formalistic approach that renders the effective appraisal of the tenders possible—regardless of minor deficiencies, ambiguities or apparent mistakes. Indeed, as stressed by the jurisprudence, in cases where the terms of a tender themselves and the surrounding circumstances known to the authority indicate that the ambiguity probably has a simple explanation and can be easily resolved, then, in principle, it is contrary to the requirements of good administration for an evaluation committee to reject the tender without exercising its power to seek clarification. A decision to reject a tender in such circumstances is, consequently, liable to be vitiated by a manifest error of assessment on the part of the institution in the exercise of that power,[13] and could result in an unnecessary restriction of competition. In that regard, it should be taken into consideration that

it is also essential, in the interests of legal certainty, that the contracting authority should be able to ascertain precisely what a tender offer means and, in particular, whether it complies with the conditions set out in the specifications. Thus, where a tender is ambiguous and it is not possible for the contracting authority to establish, swiftly and efficiently, what it actually means, that authority has no choice but to reject that tender (emphasis added).[14]

Therefore, in a nutshell, contracting authorities should ensure that the evaluation of bids leading to the award of the contract is based on the substance of the tenders, adopting a possibilistic or anti-formalist approach that excludes purely formal decisions that restrict competition unnecessarily; subject, always, to guaranteeing compliance with the principle of equal treatment. In that vein, it is important to stress that the duty of good administration does not go so far as to require the evaluation team to seek clarification in every case where a tender is ambiguously drafted.[15] Particularly as regards calculations and other possible non-obvious clerical mistakes, the duty of good administration is considerably more restricted and the evaluation team’s diligence only requires that clarification be sought in the face of obvious errors that should have been detected by the purchasing agency when assessing the bid.[16] This is so particularly because the presence of non-obvious errors and their subsequent amendment or correction might result in breaches of the principle of equal treatment.[17] Therefore, as general criteria, it seems that the relevant case law intends to favour the possibilistic approach hereby advanced, subject to two restrictions: i) that it does not breach the principle of equal treatment (ie, that it does not jeopardise the neutrality of the evaluation of tenders), and ii) that it does not require the contracting authority to develop special efforts to identify errors or insufficiencies in the tenders that do not arise from a diligent and regular evaluation.
Therefore, it is submitted that contracting authorities should develop the activities of evaluation of bids and award of the contract on the basis of such a neutral and possibilistic approach—which must be aimed at trying not to restrict competition on the basis of considerations that are too formal (ie, effectively to appraise which is the tender that actually or in substance offers the best conditions, regardless of minor formal defects or non-fulfilment of immaterial requirements) and, at the same time, ensuring compliance with the principle of non-discrimination and the ensuing transparency obligation.


[1] In this regard, it should be stressed that the principles of non-discrimination and competition present close links; see above ch 5 §IV.A, with references to the relevant case law.
[2] Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745 62. See also H-J Prieβ, ‘Distortions of Competition in Tender Proceedings … and the Involvement of Project Consultants’ (2002) 156.
[3] See: Case C-496/99 P Succhi di Frutta [2004] ECR I-3801 108. See also Case T-406/06 Evropaïki Dynamiki (CITL) [2008] ECR II-247 83; Joined Cases T-376/05 and T-383/05 TEA–CEGOS [2006] ECR II-205 76; Case T-160/03 AFCon Management Consultants [2005] ECR II-981 75; and Case T-145/98 ADT Projekt [2000] ECR II-387 164.
[4] Case T-345/03 Evropaïki Dynamiki v Commission (CORDIS) [2008] ECR II-341 143; and Case T-86/09 Evropaïki Dynamiki v Commission [2011] ECR II-309 61.
[5] Case C-202/88 France v Commission [1991] ECR I-1223 51; Case C-462/99 Connect Austria [2003] ECR I-5197 83; and Case T-250/05 Evropaïki Dynamiki (OPOCE) [2007] ECR II-85 46.
[6] As now emphasised in recital (16) of Directive 2014/24: ‘Contracting authorities should make use of all possible means at their disposal under national law in order to prevent distortions in public procurement procedures stemming from conflicts of interest. This could include procedures to identify, prevent and remedy conflicts of interests.’
[7] Case T-160/03 AFCon Management Consultants [2005] ECR II-981 75; and, by analogy, Case T-231/97 New Europe Consulting [1999] ECR II-2403 41. Recently, see Case T-297/05 IPK International v Commission [2011] ECR II-1859 122.
[8] For an overview of evaluating teams regulation and practice in the US—which focus on similar concerns—see SW Feldman, ‘Agency Evaluators in Negotiated Acquisitions’ (1991–1992) 21 Public Contract Law Journal 279; and DI Gordon, ‘Organizational Conflict of Interest: A Growing Integrity Challenge’ (2005–2006) 35 Public Contract Law Journal 25.
[9] Arrowsmith (n 28) 1295–96. Generally, see P Lascoumes, ‘Condemning corruption and tolerating conflicts of interest’, in JB Auby, E Breen and T Perroud (eds), Corruption and Conflicts of Interest: A Comparative Law Approach, Studies in Comparative Law and Legal Culture (Cheltenham, Edgar Elgar, 2014) 67–84. See also DI Gordon and G Racca, ‘Integrity Challenges in the EU and U.S. Procurement Systems’, in G M Racca and C R Yukins (eds), Integrity and Efficiency in Sustainable Public Contracts (Brussels, Bruylant, 2014) 117–46.
[10] Case T-236/09 Evropaïki Dynamiki v Commission [2012] pub. electr. EU:T:2012:127 45; and Joined Cases T-376/05 and T-383/05 TEA–CEGOS [2006] ECR II-205 76.
[11] ibid.
[12] See: Case T-211/02 Tideland Signal [2002] ECR II-3781 37–38, and cited case law. See also C-599/10 Slovensko [2011] ECR I-10873 and Case C-336/12 Manova [2013] pub. electr. EU:C:2013:647.
[13]  Case T-211/02 Tideland Signal [2002] ECR II-3781 37–38; Case T-63/06 Evropaïki Dynamiki v OEDT [2010] ECR II-177 98; Case T-195/08 Antwerpse Bouwwerken v Commission [2009] ECR II-4439 56; Case T-554/08 Evropaïki Dynamiki v Commission [2012] pub. electr. EU:T:2012:194 56; and Case T-553/11 European Dynamics Luxembourg v ECB [2014] pub. electr. EU:T:2014:275 300.
[14] Case T-211/02 Tideland Signal [2002] ECR II-3781 34; Case T-63/06 Evropaïki Dynamiki v OEDT [2010] ECR II-177 98; and Case T-8/09 Dredging International and Ondernemingen Jan de Nul v EMSA [2011] ECR II-6123 71.
[15] See: Case T-211/02 Tideland Signal [2002] ECR II-3781 37 ab initio.
[16] See: Case T-495/04 Belfass [2008] ECR II-781 65–71.
[17] Case T-19/95 Adia Interim [1996] ECR II-321 43–49. Similarly, Case T-169/00 Esedra [2002] ECR II-609 49; and Case T-195/05 Deloitte Business Advisory [2007] ECR II-871 102.

GC gets it totally wrong and pushes once more for excessive price transparency in public procurement (T-667/11)

The General Court (GC) recently issued Judgment in Veloss and Attimedia v Parliament, T-667/11, EU:T:2015:5, and annulled an award decision (actually, a ranking of tenderers decision) on the basis of the European Parliament's resistance to disclose the price of the highest ranking bid to the disappointed tenderer that was ranked second. 

In the GC's view, such deliberate omission of the price information requested during the debriefing phase amounts to a breach of Art 100(2) of the applicable Financial Regulation, which established that: "The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded" (emphasis added). 

Following its previous case law on this topic (criticised here, here, here and here), the GC shows no flexibility whatsoever and determines that
the Parliament was required to inform them of the price offered by the successful tenderer, which was one of the characteristics and one of the key advantages of the successful tender, especially since, in the circumstances of the present case, that criterion counted for 40% in the evaluation of tenders and the applicants’ tender was the first on the list of tenderers following the evaluation of the qualitative criteria.
That finding is not called into question by the argument put forward by the Parliament at the hearing that the applicants could have established the minimum price offered by one of the tenderers and the price offered by the tenderer ranked first on the basis of the information available to them and deducing it through working backwards on the basis of the [award] formula
suffice it to note that it is clear from settled case-law that, in order to comply with the obligation to state reasons enshrined in Article 296 TFEU, the reasoning of the author of the act must be shown clearly and unequivocally (see, to that effect, judgments in Koyo Seiko v Council, paragraph 42 above, EU:T:1995:140, paragraph 103, and Evropaïki Dynamiki v Commission, paragraph 42 above, EU:T:2010:101, paragraph 134). The Parliament’s argument that the applicants could, through working backwards, have deduced the minimum price offered by one of the tenderers and, therefore, the price offered by the tenderer ranked first cannot be accepted. It must be considered that, even if the applicants had made such a deduction, they would have had no certainty regarding the correct application of that formula and the accuracy of the result obtained. That finding is corroborated by the Parliament’s attitude, which raised the possibility of such a deduction being carried out only at the hearing and not during the written procedure. (T-667/11, paras 60, 64 & 65, emphasis added).
It is worth stressing, however, that the requirement to disclose the (exact) price of the highest ranking tender is not explicit in Art 100(2) of the Financial Regulation and, as argued repeatedly, it is not a desirable feature of any debriefing process because it creates excessive transparency [see A Sanchez-Graells, The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives (Nov 2013). University of Leicester School of Law Research Paper No. 13-11]. 

Hence, the fact that the GC reads an obligation to explicitly disclose the price offered by the successful tenderer and rejects an argument based on the fact that the disappointed tenderer could ascertain the relative advantage (in terms of price) on the basis of indirect information disclosed by the contracting authority (which, again, reinforces the obligation to disclose the price explicitly) is a very unwelcome development in the interpretation of Article 100(2) of the Financial Regulation (which can have a clear impact on the interpretation of Art 55 of Directive 2014/24, with further reaching consequences).

Moreover, it is shocking that there is no discussion at all about the second paragraph of Art 100(2) of the Financial Regulation, which expressly indicates that, notwithstanding the general obligation discussed above, "certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings". This safeguard clause makes a lot of sense and their ineffective use (or its total disregard) must be lamented.

It is not clear whether the European Parliament expressly relied on this exception (from reading the Judgment, it would seem not), but it is unacceptable that the GC completely excluded such considerations in its Veloss and Attimedia Judgment. Disclosure of explicit prices can have clear negative impacts on competition and should be covered (always, or at least in the vast majority of cases, by the safeguard clause in Art 100(2) of the Financial Regulation, as well as by Art 55(3) Dir 2014/24]. 

Indeed, the problem of excessive pricing transparency and its negative effects for competition in public procurement markets is very important and the scholarly consensus is that transparency needs to be reduced, particularly when it comes to price signals in procurement settings [for a recent discussion, see C Estevan de Quesada, ‘Competition and transparency in public procurement markets’ (2014) 23 Public Procurement Law Review 229-244]. Consequently, the Veloss and Attimedia Judgment is a step in the wrong direction and it starts to be hard to believe that the case law on transparency can make a turn towards economic wisdom.

On a more positive note, another important point to stress focuses on the possibilistic approach adopted by the GC when it comes to deciding what sorts of procurement decisions are amenable to judicial review. In that regard, it bears some stress that the GC found that
according to settled case-law and having regard to the objective of effective and rapid judicial protection, in particular by interlocutory measures, the possibility of review cannot be subject to the fact that the public procurement procedure in question has formally reached a particular stage. On the basis of the consideration that compliance with the procurement rules must be ensured in particular at a stage at which infringements can still be corrected, it must be concluded that an expression of the will of the contracting authority in connection with a contract, which comes in any way whatever to the knowledge of the persons interested, is amenable to review, provided that that expression has passed the stage of acts which constitute a mere preliminary study of the market or are purely preparatory and form part of the internal reflections of the contracting authority with a view to a public award procedure and is capable of producing legal effects (see, to that effect and by analogy, judgment of 11 January 2005 in Stadt Halle and RPL Lochau, C‑26/03, ECR, EU:C:2005:5, paragraphs 38 and 39) (T-667/11, para 47, emphasis added).
This, the GC got right.

GC uses principle of equality of treatment as "fix-for-all", despite flagrant procedural irregularities (T-48/12)

In its Judgment in Euroscript - Polska v Parliament, T-48/12, EU:T:2014:680, the General Court addressed an interesting point on the application of the principle of equal treatment when the public buyer decides to reassess the offers received and, as a consequence of the reassessment, adjudicates the contract to a tenderer other than the one initially granted the highest score.

In the case at hand, a contract for translation services into Polish had been tendered by several EU Institutions under the lead of the Parliament. The first evaluation of the offers produced a shortlist were Euroscript Polska was ranked first and Agencja MAart second.

The Parliament proposed to award the contract to Euroscript, subject to its furnishing of sufficient proof of not being affected by any applicable exclusion ground. The decision was communicated to all tenderers and a 14-day period for the request of further particulars on this decision, including their own evaluation reports and the relative advantages of the selected offer, started.
 
Almost a month after the expiry of the 14-day deadline, and without having requested the suspension of the procedure, MAart requested that the Parliament reassessed its offer. The Parliament did so and granted sufficient additional points to MAart as to make its offer top the shortlist. The Parliament communicated this reassessment to all tenderers, including Euroscript, and proceeded to sign the contract with MAart.Euroscript's challenge was based on two grounds, and the GC decides only on the basis of the general principles of transparency and equal treatment. There are two aspects of the Judgment that deserve comments.
Firstly, the GC is willing to assess the case on its grounds despite the obvious procedural fault derived from the Parliament having accepted MAart's request for a reassessment outside the applicable 14-day period. The GC reaches that position on the basis of Art 103 of the applicable Financial Regulation, which would have allowed the Parliament to suspend the contract if there was evidence that the award procedure had been vitiated by substantial errors or irregularities or by fraud (para 58).
 
In my view, there was no evidence of a substantial error in the initial assessment (the reassessment merely granted MAart 3.58/100 extra points, which does not seem substantial), and the generosity of the GC is troubling, given that it may result in a permanent reopening of the assessment phase of the tenders for contracts with the EU Institutions--which the GC expressly argues against in para 55, with reference to the CJEU Judgment in Strabag, C-314/09, EU:C:2010:567, para 37. Hence, a more detailed assessment of fumus boni iuris at this point would have been desirable and, arguably, should have killed the case.
 
Secondly, on top of finding an infringement of the principle of transparency derived from the lack of communication to tenderers that a second evaluation was being carried out (para 60), the GC considers that the principle of equal treatment was breached because the reassessment only covered MAart's offer, but not Euroscript's or any other tenderers' (para 61). Here, again, the GC seems to be too generous by hinting at the fact that a reassessment of all offers would have sufficed to uphold the principle of equal treatment.
 

In my view, if the reassessment was due to a sense that there may have been 'substantial errors or irregularities', a mere reevaluation would not have sufficed and the Parliament would have needed to carry out a more detailed investigation and to offer all tenderers (and particularly Euroscript) the possibility to present their views on MAart's allegations. Conversely, if the reassessment was merely due to the fact that MAart had complained (despite being time-barred), the fact that all offers would have been reevaluated should have made no difference whatsoever and the procedural irregularity should have tainted the whole of the second award.
 
Generally, I think that reliance on the principle of equal treatment is excessive and that its use as a panacea in procurement review creates significant shortcomings in the case law. Hence, where there are good technical reasons to quash an award, I would like to see the courts refraining from ellaboration on equality terms, so that such a 'tool' can be used where discrimination is at the core of improper procurement decisions. Otherwise, we will keep on cracking nuts with a sledgehammer, which may end up breaking it...

Osei-Afoakwa's Paper on Transparency and Procurement

In a recent paper on transparency and public procurement, Dr Osei-Afoakwa presents a very passionate defence of maximising transparency in procurement for the purposes of combating corruption ["How Relevant is the Principle of Transparency in Public Procurement?(2014) Developing Country Studies 4(6): 140-146]. 

Given my personal view that transparency in procurement (in the EU) is excessive and potentially self-defeating (see here and here), I read it with some skepticism. 

However, I have been glad to discover a section where the advocation of transparency is subjected to some counter-arguments. In my view, the most interesting ones are summarised as follows:
With reference to transparency as it affects public procurement, the increased knowledge associated with transparency may prove counterproductive. According to Jenny (2005) unmitigated transparency may breed anticompetitive practices, facilitate tacit collusion among the tenderers and thereby foment corruption. Under certain circumstances, the bureaucracy associated with the need to provide more information may indeed assist bribe givers to identify potentially corrupt officials (Bac, 2001). Bac (2001) argues that, this may facilitate corruption by enabling easy identification of people with whom “connection” may be established for the purpose of corrupt practices. In addition, knowledge acquired by potentially corruptible officials through transparency measures will enable them to learn the “ways and means” of perfecting and promoting the art of corruption.


Moreover, transparency for the sake of it is not a final-one-stop cure for the corruption in procurement syndrome. It must be supported by other corruption-reducing imperatives including assurance of effective competition and efficiency in managing public resources (Beth, 2005). Nowadays, as indicated by policy developments and experience in advanced countries spearheaded by the United States, the OECD and WTO, and reflected in “internationally shared norms”, effective competition is being maintained through the international trade liberalisation crusade (Anderson and Kovacic, 2009).In addition, sometimes unmitigated transparency may be at variance with other requirements of good governance. It is therefore important to establish an appropriate balance between transparency and other tenets of good governance by ensuring that information is released with due regard to established rules (Wittig, 2005). Thus absolute, unmitigated transparency may not be always desirable. The degree of transparency and openness should be adapted accordingly to suit the nature, status and value of recipient of information, the stage of the procurement cycle, the sensitivity of information, the size of the contract and the nature of the item to be procured. Therefore it becomes necessary to time the release of information to suit the nature, status and value of recipients (emphasis added).
Overall, the paper is interesting food for thought for anyone interested in the difficult balance between transparency and effective competition in public procurement. 

Difficult balance between #transparency and #competition in #publicprocurement

This paper stresses the negative impact that the excessive levels of transparency imposed by public procurement rules can have on competition for public contracts and, more generally, on the likelihood of cartelisation of the markets where public procurement takes place. The paper critically assesses some recent Judgments of the Court of Justice of the European Union and the General Court from this perspective and shows how the top EU Courts are still oblivious to the fact that excessive transparency may diminish the effectiveness of procurement by reducing competition. It also indicates that the case law itself has unused balancing tools that may help reduce the negative impact of excessive transparency, particularly if coupled with a reduction of the financial incentives offered to litigants that have no other claim than a 'mere' lack of compliance with full transparency. The paper concludes that a reform in the enforcement and oversight mechanisms oriented towards the setting up of a semi-opaque review system would overcome some of the deficiencies identified in the current case law from a law and economics perspective.
Sánchez Graells, A 'The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives' (November 2013). University of Leicester School of Law Research Paper No. 13-11. Available at SSRN: http://ssrn.com/abstract=2353005.