Another excessively formalistic Judgment on conflicts of interest in public procurement (T-403/12) — How to Crack a Nut

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According to its beginning legal law on public procurement, which puts the evidence of interest conflicts (see here), the court (GC) of the Court of Justice of the European Union once again assumed a very formalist approach. that they have an unfair competitive advantage. In his judgment of 13. October 2015 in Intrasoft International V Commission, T-403/12, EU: T: 2015: 774, The GC has followed a very formalist approach for the objective evaluation of an unfair competitive advantage, which was derived from a prior participation of a bidder in preparing the documentation in a certain tender. Again, the case includes the procurement of the EU.

In Intrasoft International V Commission, The excluded bidder was indirectly involved in the production of tender documents in an indirect way or due to the relative chance. In fact, the bidder had not collected any documents specifically for the detailed tender, but it was involved in the development of tender documentation for an earlier project that was reused by the contracting authority. This situation was evaluated in a contradictory way between the contracting authority (the European Commission) and the excluded bidder.

According to the Commission, the (indirect) earlier participation was sufficient to offer the bidder an excessive competitive advantage, which required its exclusion from the tender procedure as the only remedy for this conflict of interest. As summarized by the GC

The Commission argues that … A certain number of documents that were collected by the applicant in the previous contract. These documents form the basis for an important part of the activities due in the context of the ongoing tender. As the applicant determines, the commission does not contest that the documents have been made available to all potential candidates. However, it claims that the applicant had access to them in front of the other bidders and thus had a competitive advantage in particular to search for qualified experts. Although the Commission did not claim that this was actually the situation in the present case, it suggests that the applicant, after participating in his elaboration, would be able to design the documents in a way (T-403 /12, ABS. 65).

It is not surprising that the excluded bidder disagrees and has an opposite assessment of the advantage from the previous (indirect) participation in the creation of the tender documentation

The applicant states that he was not involved in the development of the reference conditions or the project requirements for [the specific tender]. The applicant also indicates that he had no more information in his possession than those that are available to all bidders. As a result, according to the applicant, the fact that it had involved a number of technical documents in connection with another tender procedure. In addition, it is assumed that it deals with the case of the court (judgment of 3. March 2005 in Material, C-21/03 and C-34/03, ECR, EU: C: 2005: 127) that the experience gained as part of a previous contract is unable to distort competition, because if that was the case, Most bidders would have to be excluded from new tender procedures on this soil (T-403/12, ABS. 63).
When evaluating these different ratings of the situation of the conflict of interest, which may affect the excluded bidder, the GC follows a very formalist approach that builds up as follows:

76 The price supply authorities are not absolutely obliged to systematically exclude bidders in a situation of a conflict of interest, which in cases is not justified in which it is possible to show that this situation in the context of which has no influence on their behavior and it is not a actual Risk for practices that can distort the competition between bidders. On the other hand, the exclusion of a bidder is a conflict of interest Nexans France against entrepreneur community merger for energy, [T-415/10], EU: T: 2013: 141, paragraphs 116 and 117).

79 It goes out of the legal system … that the argument in relation to risk The conflict of interest requires a specific assessment, first of the tenders and secondly the situation of the bidder and that the exclusion of this bidder is a means of bidder.

80 to determine whether there is an injury in the present case … It is therefore necessary to examine in connection with an objective analysis without taking into account the intentions of the applicant whether the risk of a conflict of interest is due to the situation of the applicant and a specific assessment of his offer.

81 primarily should be noted. It is argued that the applicant had access to certain documents that were used as the basis for some of the activities associated with the call for sought -after activities because the applicant was part of the consortium that the relevant documents designed for a further call for offers. From the letter from 10. August 2012 this access is made available to the applicant privileged information … The Commission therefore sees the view according to what can be seen in the letter in question.

82 However, it cannot be accepted that the risk of a conflict of interest can be Based on the mere fact that the applicant had access to the other bidders to the documents that were specific for a different call from tenders, since he belonged to the consortium, which prepared the documents that could later be used as a reference for the activities associated with the call present case (T-403/12, ABS. 76 and 79-82, highlighted) added).

This first part of the argument seems to follow the general Material Approach against cases of the automatic exclusion of bidders who were previously involved in the design of tendering procedures. However, the specific application of this approach to the circumstances of the case quickly becomes very formal and restrictive, by what I consider to be excessive trust in the fact that the tender documents originally belonged to another procedure, or in other words. were not exclusively available for the tender procedure. This part of the GC argument is as follows:

84 in the sense of the case law … The risk of a conflict of interests exists for the person who is responsible for the preparatory work for a public contract Who participates in the same contract. In this regard, it should be observed Material, Cited in paragraph 63 above (EU: C: 2005: 127), Work in the context of one and the same call to the tender.

Another excessively formalistic Judgment on conflicts of interest in public procurement (T-403/12) — How to Crack a Nut another

85 Therefore, The Commission was not entitled to deal with the creation of documents that were introduced in the same way in the course of a further call for tenders in the same way as preparatory work within the framework of the detailed tender procedure, Within the importance of the legal protection mentioned in paragraph 63 mentioned above, Un to show objectively and specifically that these documents rose in the light of the. If this is not proven, the documents that are created in the course of another tender procedure and then cited by the contracting authority as a reference for some of the activities in another tender procedure …

86 In the present case, it must be determined that the exclusion of the applicant from the award of the contract was based on the mere fact that it was part of a consortium that designed the documents as part of an earlier tender procedure during the process was a consortium It was not argued that the other bidders had no access to the same documents in sufficient time. In addition, the creation of these documents did not include the participation of the applicant in the creation of the tender specifications in the request to interview tenders. Therefore it was not determined.

Another excessively formalistic Judgment on conflicts of interest in public procurement (T-403/12) — How to Crack a Nut another

87 It follows that the documents in question do not constitute privileged information … The exclusion of the complainant, contrary to the requirement claimed by the Commission, is therefore not covered … and is therefore not justified by violations of the principles of equal treatment and transparency.

88 also, In order to classify the documents created in the context of another tender procedure as a preparatory work, on the basis that the contracting authority has been retained as a reference for the activities associated with subsequent tender procedures, How the applicant rightly claims, It is automatically taken into account that the experience that was collected by participating in an earlier call to the tender is distorted by the competition (T-403/12, ABS. 84-88, emphasis added).

The specific decision in the present case led to a cancellation of the exclusion decision, but mainly due to a lack of evidence of the actual advantage of the bidder before (indirect), which was involved in the preparation of the tender documentation. 

In addition to the specific case, the formal approach of the GC can lead to difficulties in excluding depths with an earlier indirect participation in the creation of documents that were used in a certain tender procedure, especially because the in ABS. 85 Test by ABS. 85 of Intrasoft International V Commission Comes to determine a very high burden of proof that is difficult to release: the contracting authority cannot 'Treat the preparation of documents that were designed in the same way as preparatory work in the course of the tender procedure in the course of a further call for tenders, To show un objectively and specifically, first, that these documents were created in the light of the tender procedure in question and secondly that he had given the applicant a real advantage''. Such an element of the link for specific tender will definitely be very problematic. In my opinion, it can also violate the general requirement that the assessment of conflicts of interest is completely objective, as the GC itself emphasizes in the same case: 

The concept of a conflict of interest is objective in nature and to establish it, It is appropriate to ignore the intentions of those affected, In particular whether they acted in good faith (see judgment of 20. March 2013 in Nexans France against entrepreneur community merger for energy, T-415/10, ECR, EU: T: 2013: 141, paragraph 115 and cited legal dispute) (T-403/12, ABS. 75, emphasis added).

If the expression 'Prepared in the light of the strenuous tender procedure ' is designed in such a way that the bidder prepares the documentation that it is used in more than one tender procedure to request (positively, recorded), and then the GC may have just created a request from Probatio Diabolica Where it is difficult to recognize (and takes into account that the bidder who participates in his preparation is actually disclosed). 

Once again the development of case law on conflicts of interest in public The procurement under a strict and formalist approach seems to leave a number of questions open. It will be interesting to see.

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