Equal Treatment and Transparency principles in Public Procurement
News    ·   30-10-2018
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AUTHOR: Steven Decesare; Lisa Abela; Katya Gatt

In a judgment delivered earlier this month the General Court listed some useful principles in considering an appeal from a decision of the European Institute for Gender Equality (EIGE) rejecting a tender submitted by Proof IT SIA. In this case, EIGE had taken the decision carry out a second evaluation to re-evaluate all tenders submitted due to errors having been noted in the rejection letter sent to Proof IT SIA by the first evaluation committee. According to Proof IT SIA, the EIGE had breached the principles of equal treatment and transparency since the first and second evaluation committees had interpreted the award criteria differently, which award criteria it held to be imprecise.

In rejecting Proof IT SIA’s first plea of a breach of the principles of equal treatment and transparency, the General Court highlighted that:

i.          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; it follows therefore from that principle that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed;

ii.          the principle of equal treatment implies an obligation of transparency so that it is possible to verify that that principle has been complied with;

iii.          in particular, it implies that all the conditions and detailed rules of the procurement procedure are drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications;

iv.          all technical information relevant for the purpose of a sound understanding of the contract notice or the tendering specifications must be made available as soon as possible to all the undertakings taking part in a procurement procedure, in order to enable all reasonably well-informed tenderers exercising ordinary care to understand their precise scope and to interpret them in the same manner, and to enable the contracting authority to verify whether the tenderers’ bids meet the criteria of the contract in question;

v.          there is an obligation on the part of the contracting authorities to interpret the award criteria in the same way throughout the procedure; and

vi.          a contracting authority cannot apply weighting rules or sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention.

On the basis of these principles, the General Court found no breach of the principles of equal treatment and transparency. It concluded, firstly, that all tenderers were on equal footing, with all the tenders being reassessed by the second evaluation committee without exception; secondly, no derogation from the requirements in the tender specifications, particularly the award criteria, took place to the advantage of any tenderer; and finally, there was no alteration of award criteria, which criteria it found to be sufficiently precise, with the differences between the first and second evaluation committees’ reports being merely the consequence of there being two committees with different compositions.

Case cited: Case T-914/16, Proof IT SIA v European Institute for Gender Equality (EIGE) ECLI:EU:&:2018:650

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