The Court of Appeal (the “Court”) has recently confirmed the Public Contracts Review Board’s (the Board”) decision to dismiss an application challenging a tender’s mandatory requirement on the basis that the requirement was not challenged through a remedy before the closing date for receipt of bids. [1]
The appellant in this case was arguing that a mandatory requirement for a collective agreement to be in place between employees to be supplied on the cleaning contract being tendered is not a criterion that can be validly imposed (as opposed to, for example, a requirement that all workers have a written contract), since it is not linked to the subject matter of the contract and is not a reflection of the fundamental principles of EU law.
The Court noted that, relevant or not, the condition formed part of the tender requirements, and whoever participates in a tender procedure must meet all its requirements or be disqualified. The Court agreed with the Board that if the tenderer in question did not agree with the mentioned requirement, it had a remedy available to attack it at an earlier stage – that is, the remedy provided under regulation 262 of the Public Procurement Regulations (the “PPR”), which allows the filing of an application to attack a tender requirement before the time period for submission of tender closes.
While this confirms a position that has been adopted by the Board in multiple decisions over the past years, we note that it might prove to be problematic in practice in view of recent amendments to the PPR which require that the above-mentioned remedy be availed of “within the first two-thirds of the time period allocated in the call for competition for submission of offers”.
This might lead to a scenario where a prospective tenderer submits a clarification to a contracting authority on a requirement it is in disagreement with and, by the time the contracting authority replies, the time limit for filing the remedy would have elapsed, resulting in the party in question having no choice other than accepting the requirement (and, if later disqualified for failing to meet it, bringing a claim which might be rejected on the basis of the reasoning set out above) or refraining from making an offer to begin with.
For further information, or to discuss your procurement-related queries, kindly get in touch with Katya Gatt (katya.gatt@camilleripreziosi.com) or Steve Decesare (steve.decesare @camilleripreziosi.com).
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[1] Application number 340/22/1, All Clean Services Limited v Ministeru ghall-Edukazzjoni, l-iSport, iz-Zaghzagh, ir-Ricerka u l-Innovazzjoni et, decided on 10th January 2023.
