Posted by - ZumbiSpiel
- Detailed comments against illegal sub -criteria your weightings
- No comment from the UN in the presence of my lawyer?
- ZumbiSpiel
- Detailed comments against illegal sub -criteria your weightings
- No comment from the UN in the presence of my lawyer?
- ZumbiSpiel
- Detailed comments against illegal sub -criteria your weightings
- No comment from the UN in the presence of my lawyer?
Thanks to the infinite legal efforts of European dynamics, the EU courts recently added two decisions to the growing acquisition of the obligation to raise reasons in the context of public procurement. Although in most cases the legal analysis tends to repeat well-established principles of EU law; The increasingly complicated arguments of European dynamics can sometimes lead to interesting reading.
Two recent cases concern the risks that the contracting authorities arise when specifying the reasons for their ratings if disappointed bidders can argue due to the debriefing that the evaluation is based on price criteria that are not previously included in the tender documentation. In these two latest cases, the court (GC) gave insights into the treatment of examples as a representative for the evaluation of service quality (T-477/15), during the Court of Justice (EUJ) somewhat illuminated the situations in which specific comments too Specific aspects of a tender as illegally new weighting factors for the award sub-criteria (C-677/15 p) can be interpreted (C-677/15 p). In this article, these specific aspects of these two recent cases are discussed.
ZumbiSpiel
In his judgment of 1. February 2018 in the European Dynamics Luxembourg and others against ECHA, T-477/15, EU: T: 2018: 52 had to assess the GC a complaint raised by European Dynamics (ED). by criticizing his tender on the basis of a lack of examples. The contract was necessary for the provision of IT services and in a simplified point of view, the tender documentation that submits the bidders offers based on a certain hypothetical scenario of service. It turned out that the winner contained numerous examples of how it would deal with the service requirements. In comparison, the evaluation committee found that the tender of ED, which lacks in detail, and as a justification for the allocation of ED, a lower brand as part of the corresponding sub -criteria of the award ceremony, the committee provided negative comments, which with the lack of examples in Connected to illustrate the tender submitted by Ed.
ED questioned this approach by finding that the offer was punished … On the grounds that it did not contain a sufficient number of examples, although it corresponded to the tender specifications, the [contracting authority] introduced a new criterion that was not included in the tender specifications … [and] also criticizes the [contracting authority] to have evaluated the tenders against an unpublished criterion, namely the choice of the bidder which information should be included in the offer. [Ed] also refer to the possibility that the [contracting authority] was based on a horizontal criterion of the general understanding of the bidder for the tender specifications. (Section. 121).
The GC put this complaint into the strict of equal treatment and transparency (ABS. 123) And repeated the general case law in relation -126). It was then found
First, it must be remembered that the fact that the content of the tender submitted by the submission European The Dynamics consortium that has followed the tender specifications.
The same applies to the fact that all negative comments do not necessarily correspond to an explicitly explicit requirement of technical specifications … In this regard, it must be remembered that an evaluation committee must be able to do its job. Accordingly, it can structure its own work to check and analyze the submitted offers without changing the contractual price criteria specified in the tender specifications or the contract announcement …
On second place, … The comments of the evaluation committee on inadequate examples that specifically illustrate the proposal for the provision of services For the scenario of European dynamic consortium contained in the tender does not mean that this committee has taken into account a price criterion that was not explained in the tender specifications. on the other hand, How the [contracting authority] submits, The presence of examples can be able to reflect the proper understanding of the bidder for the services you are looking for. Similarly, the selection by the bidders of the information and details that are included in the tender shows. Therefore, the comments on inadequate examples or details are insufficiently connected to the evaluation of the price criteria submitted by the European dynamic consortium …. They therefore do not show the existence of additional price criteria.
The report of the evaluation committee shows that the value of the tenders was actually assessed in relation to the technical criteria mentioned in the tender specifications. The fact that, as the [contracting authority] in its defense, I cannot question this finding. Even if the objection was valid, the argument was that the [contracting authority] is of the opinion that the general understanding of the tender specification was more important).
In my opinion, the judgment of the GC should be welcome. Mainly for two reasons. Firstly, it avoids the dangerously prescribed approach, which would have underpinned that each example (or the number of examples) must be associated with a certain price criterion that would have made the design of price criteria and tender formats incredibly complex and restriction. Secondly, because it is recognized that the evaluation committees in relation to the spread of criteria in sub -criteria can carry out the assessment based on their general or holistic evaluation of the tenders (and I would say) (and I would say). Here, too, the opposite approach would be excessively restrictive and would lead to an artificial distribution of the tenders into different sub -dimensions in a way that could make the evaluation process controversial or very complicated. On the whole, this is a good example of pragmatic approach by the GC.
Detailed comments against illegal sub -criteria your weightings
In his judgment of 20. December 2017 in Euipo against European Dynamics Luxembourg and other, C-677/15 p, EU: C: 2017: 998 (for discussion of those in the appeals of GC decisions, see here), see ECJ), the ECJ, whether specific comments The illegal introduction of sub -criteria or their weighting can be specified for certain aspects of a tender. It should be remembered that the case also applies to the provision of IT services and that the evaluation of the quality of the offers would partly be based on your project management strategy, which should be assessed based on a long list of not older elements (such as a change management process or a ons learned program)).
In the first instance, ED questioned the assessment on the grounds that the negative commentary of the contracting authority on the offer of the contracting authority presented by [ed] received a higher score than after the first prize criterion. The most important tasks for the success of the project showed that [the contracting authority] a weighting on the various sub -criteria within the first price criterion (ABS. 11) applied (ABS. 11). The GC stood on the edge of Ed and found that the weighting was not intended by the tender specifications or the bidders, [the contracting authority] was communicated in advance transparency ‘(ibid.))).
In the appeal procedure, the ECJ has now determined that [i] t is clear that the appeal judgment is prevented in this regard by a legal error (Section. 30). However, the EUJ has reached this position for purely procedural reasons, which leaves the question of whether the provision of negative comments, the relative disadvantages in relation to some, but not all who indicate the sub -criteria published in the tender document an illegal case of introducing illegal sub -weight. In fact, the EUJ assumed that this is the case and provided the following reasons for the lifting of the previous GC assessment for procedural reasons:
… The principle that procurement procedures must ensure equal treatment and be transparent … Accordingly, a contracting authority cannot apply weighting rules or sub -criteria in relation to the price criteria that it has not previously attracted to the bidders’ attention …
No one, A contracting authority is possible to determine the time limit for submitting tender weighting factors for sub -criteria that essentially correspond to the criteria. However, this subsequent statement must meet three conditions, namely not: (i) the criteria for the award of the contractual contract specified in the contract documents or contractual expenses; (ii) contain elements that, if they were known at the time the tenders were manufactured, impair this preparation; and (III) on the basis of matters that probably lead to discrimination against one of the bidders were passed …
In the present case, the controversial results concern the introduction of the weighting, which has given sub -criteria within one of the price criteria, which was not intended in the tender specifications or was disclosed in advance to the bidders … Hence in the light of the above, The court was unable to achieve the valid determination that there was a violation of the principles of equal opportunities and transparency without first checking whether it had been asked and was found that these three conditions were not met were.
Since the court was not checked … whether these three conditions … In the present case, the first reason for appeal must be confirmed without the reasoning of the argument of the contracting authority that the court has not to be examined that the obligation to find reasons had not taken into account that the introduction of factors for the evaluation of the under criteria led to a violation of the principles of the same opportunities and transparency (Paras 31-35, left out references and added priorities).
In my opinion, this is a lost opportunity for the EUJ, the extent too clear. It is also relatively difficult to put together the two cases discussed in this article. Strictly speaking, it seems that ED has used logic that arises from this second case in the first case that ED was rightly claimed to mention the existence of a larger number of examples as the reason for a lower technical brand could represent a new one Sub -criterion (or a new underweight when the provision of examples has been displayed under The list of criteria that are to be taken into account). In this regard, the GC seems to have followed a milder approach in the first case. The first case should be inserted by ED (who knows?), This can be a difficult problem that the ECJ can iron out.
No comment from the UN in the presence of my lawyer?
Overall, I think that these two cases show how flexible the courts in the assessment of the comments of the contracting authorities in connection with the authorization of procurement powers are. These are dangerous waters. If this leads to the fact that evaluation teams are necessary to sit in his meetings in his meetings and ensure that nothing that is committed to paper (keyboard)? No comment.
