In its judgment of 21 December 2021 (C‑497/20), the Court of Justice of the European Union (CJEU) confirmed that excluded tenderers may invoke all irregularities when challenging an award decision, even irregularities that do not relate to their exclusion.
In the case that led to this ruling, Randstad Italia had been excluded from a public procurement procedure because its technical offer did not meet the minimum threshold. The company challenged not only its exclusion, but also the regularity of the award decision/procedure. Randstad Italia argued that the call for tenders should have been divided into lots, that the assessment criteria were imprecise and that the appointment of the evaluation committee was unlawful. However, the Italian Council of State declared the claims against the award decision/procedure inadmissible on the basis that Randstad Italia lacked the legal interest to raise them.
Following a request for a preliminary ruling, the CJEU found that the Council of State had wrongly refused to examine Randstad Italia's claims directed at the award decision/procedure.
In line with its Lombardi case law (C‑333/18), the CJEU reaffirmed that national courts must hear an excluded tenderer's claims as long as the tenderer's exclusion is not yet final, even when they are directed against the award decision or the award procedure as such. According to the CJEU, an exclusion decision is only final when it either (1) has been confirmed by an independent and impartial court, or (2) can no longer be challenged before a court. Ruling differently would be in breach of the fundamental right to an effective remedy as enshrined in Article 47 of the EU Charter of Fundamental Rights.
This is also important for Belgian tenders, as the Belgian Council of State regularly dismisses claims against award decisions if they relate to irregularities that were already obvious on the basis of the tender documents. It can be questioned whether the Council of State's position complies with the ruling in Randstad Italia.
In that context, it is important to note that the Randstad Italia ruling does not refer to the eVigilo case law (C‑538/13). In that case, the CJEU had stated that tenderers who challenge an award decision can in principle not invoke irregularities with respect to the tender procedure if they have already had the possibility to do so in an earlier appeal, but failed to lodge that appeal within the time limit. According to eVigilo, this is only allowed if the tender conditions were so incomprehensible that the tenderer was prevented from introducing an application within the initial time limit.
It is unclear from the ruling whether Randstad Italia had the possibility to invoke the irregularities earlier on in the tender procedure. Nevertheless, in the absence of any reference to eVigilo, it can be argued that the ruling intends to relax the CJEU's position in eVigilo.
With this Grand Chamber judgment, the CJEU reaffirms the importance of a tenderer's right to effective remedies under public procurement law.
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