Category Archives: Public procurement

Public procurement & competition law : to what extent related undertakings may submit separate bids in the same tendering procedure?

Judgment
C‑144/17
08.02.2018
PartiesJurisdictionFormationJudge RapporteurAdvocate GeneralSubject-matter
Preliminary rulingLloyd’s of London
v
Agenzia Regionale per la Protezione dell’Ambiente della Calabria (Aparcal)
Court of Justice Sixth ChamberE. ReganE. TanchevPublic procurement - Competition law
KeywordsReference for a preliminary ruling — Public procurement — Articles 49 and 56 TFEU — Directive 2004/18/EC — Reasons for exclusion from a tendering procedure — Insurance services — Participation of several Lloyd’s of London syndicates in the same tendering procedure — Signature of tenders by the Lloyd’s of London General Representative for the country concerned — Principles of transparency, equal treatment and non-discrimination — Proportionality
Significant pointsThe General Court has annulled a decision of This preliminary ruling relates to a tendering procedure launched by an Italian public authority, Arpacal, for the award for a public service contract for insurance. Two Lloyd’s ‘syndicates’ participated in the call for tenders. Their tenders were both signed by an agent of Lloyd’s General Representative for Italy. However, Arpacal excluded those syndicates from the tender due to the fact that the submissions were signed by the same person. It considered that a single decision-making centre would infringe the principles of confidentiality of tenders, equal treatment, fair and free competition, protected under EU law by Articles 49 and 56 TFEU and Directive 2004/18 on public procurement procedures (“Public Procurement Directive”). Lloyd’s argued, however, that those principles were respected because the members, whilst acting through syndicates, did operate independently and in competition with one another despite coming under the same legal entity. Moreover, the syndicates may only act through their sole representative for each Member State. The referring court observed that the Italian legislation did not forbid submissions to public tenders being signed by the same person and asked the Court clarification in this regard.
In its judgment, the Court recalled, first, that the legal grounds for exclusion from public procurement procedures set out in Article 45 of the Public Procurement Directive relate to the professional qualities of the persons concerned only. Nonetheless, the case-law of the Court has interpreted that this does not preclude the option for Member States to maintain or establish, in addition to those grounds for exclusion, substantive rules intended, in particular, to ensure, with regard to public procurement, observance of the principles of equal treatment of all tenderers and of transparency, which constitute the basis of the EU directives on public procurement procedures, provided that the principle of proportionality is observed.
In that regard, the Court firstly observed that the national legislation at issue, which is intended to prevent any potential collusion between participants in the same procedure for the award of a public contract, seeks to safeguard the equal treatment of candidates and the transparency of the procedure. Consequently, the principle of proportionality requires that such legislation must not go beyond what is necessary to achieve the intended objective.
The Court judged that the automatic exclusion of tenderers that are in a relationship of association with other competitors would go beyond what is necessary to prevent collusive behavior and to ensure equal treatment and transparency. An automatic exclusion would constitute an irrebuttable presumption of mutual interference and would not grant the possibility for the candidates of demonstrating that their tenders are in fact independent. Yet previous case law provides that it is of EU interest to ensure the widest possible participation by tenderers in a call for tenders.
The Court concluded, therefore, that the principle of proportionality requires that the contracting authority be required to examine and assess the facts, in order to determine whether the relationship between two entities has actually influenced the respective content of the tenders submitted in the same tendering procedure, a finding of such influence, in any form, being sufficient for those undertakings to be excluded from the procedure.
The Court also stated that the mere fact that tenders have been signed by the same person cannot justify their automatic exclusion from the tendering procedure. It noted in this regard that EU law applicable to insurance activities expressly allows Lloyd’s to be represented vis-à-vis third parties by a single representative for each Member State. Even though Lloyd’s may exercise its insurance activities in Member States only through the competent General Representative, the referring court must still verify that the tenders were determined and submitted independently by each syndicate.
Therefore, the Court considered that the national legislation at issue was compatible with EU law, given that it does not allow an automatic exclusion, but nonetheless allows the contracting authority to exclude tenderers where it finds, on the basis of unambiguous evidence, that their tenders were not drawn up independently.
NoteworthyIn this judgment completely in line with the Assitur case-law (C-538/07), the Court of Justice has again emphasized the importance of the principles of transparency, equal treatment and free competition in public procurement. Any exclusions from the right to tender are to be interpreted strictly and based on a factual analysis, this respecting the principle of proportionality.
The Court explained in length that the bids of undertakings linked by a relationship of control or of association should not be presumed collusive for the purpose of the EU public procurement rules and that a contracting authority had to look at the facts before any exclusion of linked undertakings. It is up to the contracting authority to establish whether the relationship between two entities has actually influenced the respective content of the tenders submitted in the same tendering procedure.
It can be interesting to compare this judgement with competition law, where it is possible for undertakings which share legal or financial links but enjoy commercial autonomy to submit separate and competing tenders, provided that they do not consult each other prior to the submission of their bids, such exchanges having an anti-competitive object (see for example, in French competition law, Paris Court of Appeal, 28 October 2010, n° 2010/03405). Accordingly, it seems that a violation of competition law would be more easily retained, given that the mere false autonomy of the bids allows the existence of a cartel to be presumed, whereas an actual influence on the content of the bids seems to be required to find a violation of EU public procurement law. Further explanations regarding this apparently partial convergence might be provided by the Specializuotas transportas upcoming judgment (C‑531/16).
Of particular importance to the insurance sector is the fact that Lloyd’s syndicates have the right to participate in the same tendering procedure and be represented by the same representative. This does not constitute a ground for exclusion from the procedure so long as the syndicates act independently in the formulation of their submissions.

Tender specifications cannot oblige the tenderer to establish links of a specific legal nature with its subcontractors before the contract is awarded

Judgment
C-234/14
14.01.2016
PartiesJurisdictionFormationJudge RapporteurAdvocate GeneralSubject-matter
Reference for a preliminary rulingOstas celtnieks SIA

v.

Talsu novada pašvaldība

and

Iepirkumu uzraudzības birojs
CJUE1st Ch.A.TizzanoM. WatheletPublic procurement
KeywordsReference for a preliminary ruling — Public procurement contracts — Directive 2004/18/EC —Articles 47(2) and 48(3) — Tender specifications laying down the obligation for a tenderer to conclude a cooperation agreement or to set up a partnership with the entities on whose capacities it relies
Significant pointsArticles 47(2) and 48(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that they preclude a contracting authority, in the tender specifications relating to the award of a public contract, from imposing on a tenderer which relies on the capacities of other entities the obligation, before the contract is awarded, to conclude a cooperation agreement with those entities or to form a partnership with them.
Preliminarily, the Court recalls that according to its own case-law Articles 47(2) and 48(3) of Directive 2004/18 recognise the right of every economic operator to rely, for a particular contract, upon the capacities of other entities (subcontractors), “regardless of the nature of the links which it has with them”, provided that it proves to the contracting authority that it will have at its disposal the means and resources necessary for the execution of the contract, including those of the subcontractors which it does not itself own .
It is then for the contracting authority to assess if the tenderer complies with the conditions foreseen in the contact notice by referring to the criteria set out by Directive 2004/18.
In this context, Articles 47(2) and 48(3) do not permit to exclude certain types of proof nor to assume, prior to the suitability assessment carried out by the contracting authority, that the tenderer has or has not the means necessary to perform the contract.
It follows that the tenderer is free to choose both the legal nature of the links it intends to establish with its subcontractors and the type of proof of the existence of those links.
Therefore, by obliging the tenderer to establish links of a specific legal nature with the subcontractors before the contract is awarded, namely a cooperation agreement or a partnership, the tender specifications limit the methods by which the tenderer may prove that it has the resources necessary for the execution of the contract, manifestly depriving provisions of Articles 47(2) and 48(3) of Directive 2004/08 of their effectiveness.
Noteworthy/

Public procurement – Directives 89/665/EEC and 2004/18/EC – conflicts of interests – connection between the successful tenderer and the contracting authority’s experts

Judgment

C-538/13

12.03.2015

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Reference for a preliminary ruling

eVigilo Ltd

v

Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos

CJEU

 5th Ch.

 E. Juhász

N. Jääskinen

Public procurement

Keywords

 Public procurement — Directives 89/665/EEC and 2004/18/EC — Conflicts of interests — Connection between the successful tenderer and the contracting authority’s experts — Obligation to take that connection into account — Burden of proving bias on the part of an expert — Such bias having no effect on the final result of the evaluation — Time-limit for instituting proceedings — Challenging the abstract award criteria –Those criteria clarified after the exhaustive reasons for the award of the contract had been communicated — Degree of the tenders’ conformity with the technical specifications as an evaluation criterion

Significant points

  1. The third subparagraph of Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, must be interpreted as not precluding a finding that the evaluation of the tenders is unlawful solely on the grounds that the tenderer has had significant connections with experts appointed by the contracting authority who evaluated the tenders. The contracting authority is, at all events, required to determine the existence of possible conflicts of interests and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. In the context of the examination of an action for annulment of an award decision on the ground that the experts were biased, the unsuccessful tenderer may not be required to provide tangible proof of the experts’ bias.
  2. Thus, if the unsuccessful tenderer presents objective evidence calling into question the impartiality of one of the contracting authority’s experts, it is for that contracting authority to examine all the relevant circumstances having led to the adoption of the decision relating to the award of the contract in order to prevent and detect conflicts of interests and remedy them, including, where appropriate, requesting the parties to provide certain information and evidence. Evidence such as the claims in the main proceedings relating to the connections between the experts appointed by the contracting authority and the specialists of the undertakings awarded the contract, in particular, the fact that those persons work together in the same university, belong to the same research group or have relationships of employer and employee within that university, if proved to be true, constitutes such objective evidence as must lead to a thorough examination by the contracting authority or, as the case may be, by the administrative or judicial control authorities.
  3. It is, in principle, a matter of national law to determine whether, and if so to what extent, the competent administrative and judicial control authorities must take account of the fact that possible bias on the part of experts has had an effect on the decision to award the contract.
  4.  The third subparagraph of Article 1(1) of Directive 89/665, as amended by Directive 2007/66, and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18, must be interpreted as requiring a right to bring an action relating to the lawfulness of the tender procedure to be open, after the expiry of the period prescribed by national law, to reasonably well-informed and normally diligent tenderers who could understand the tender conditions only when the contracting authority, after evaluating the tenders, provided exhaustive information relating to the reasons for its decision. Such a right to bring an action may be exercised until the expiry of the period for bringing proceedings against the decision to award the contract.
  5. Articles 2 and 53(1)(a) of Directive 2004/18 must be interpreted as allowing, in principle, a contracting authority to use, as an evaluation criterion of tenders submitted by the tenderers for a public contract, the degree to which they are consistent with the requirements in the tender documentation.
  6. According to Article 53(1)(a) of Directive 2004/18, the tender most economically advantageous from the point of view of the contracting authority is to be assessed according to various criteria linked to the subject-matter of the public contract in question, for example, quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion.
  7. According to the case-law, as follows from the use of the phrase ‘for example’, that list is non-exhaustive (see judgment in Commission v Netherlands, C‑368/10, EU:C:2012:284, paragraph 84).Thus, the contracting authority has the power to establish other award criteria, in so far as they are connected with the purpose of the contract and respect the principles set out in Article 2 of Directive 2004/18.
  8. It is all the more important that the contracting authority must enjoy such freedom since the most economically advantageous tender is to be assessed ‘from the point of view of the contracting authority’.

 

Noteworthy

  1. In this judgment, the Court of Justice has provided useful guidance on how to assess the existence of bias in a public procurement procedure and on the evaluation of tenders submitted in such a procedure.
  2. This being said, the reasoning of the CJEU could have been more linear and accurate on the first issue (existence of bias consisting in a conflict of interests) by establishing first what is required from the contracting authority under the directives and second what national law may provide for in order to comply with EU Law in this respect. Instead of that, the judgment has melted the two issues (see paragraphs 34 to 46, where the CJEU starts with the interpretation of the EU Directives, switches to national law, comes back to the EU Directives and ends with national law) which makes its reading uncomfortable and its understanding not that clear.

Continue reading Public procurement – Directives 89/665/EEC and 2004/18/EC – conflicts of interests – connection between the successful tenderer and the contracting authority’s experts

Public service contracts – Supply of Greek translation services for the Parliament

Judgment

T-667/11

14.01.2015

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Action for annulment

Verloss International SA, Attimedia SAVEuropean Parliament

General Court

3rd Ch.

E. Bieliunas

 /

Public services contracts

Keywords

 Public service contracts – Supply of Greek translation services for the Parliament – Rejection of a tenderer`s bid – Obligation to state reasons – Non-contractual liability

Significant points

  1. The decision of the European Parliament of 18 October 2011 implied the rejection of Verloss International and Attimedia tender for the main contract and the fact that it had been decided to award the contract to another tenderer for the provision of Greek translation services. The Parliament has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation tender.
  2. The Parliament did not provide Verloss International SA and Attimedia SA with either the name of the successful tender or any information about the characteristics and relative advantages of the successful tender, even though it was required to do so under the Financial Regulation (Article 100(2)) and the Implementing Rules.
  3. Even if the Parliament did not give adequate statement of reasons for the contested decision, that does not mean that the award of the contract to the successful tenderer constitutes wrongful conduct or that there is a causal link between that fact and the loss alleged by Verloss International SA and Attimedia SA.

Noteworthy

Public service contracts – Directive 92/50/EEC

Judgment

C-568/13

18.12.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Reference for a preliminary ruling

Azienda Ospedaliero-Universitaria di Careggo-Firenze

V

Data Medical Service Srl

CJEU

 5th Chamber

 E. Juhász

 J. Kokott

Public service contracts — Directive 92/50/EEC

Keywords

 Public service contracts — Directive 92/50/EEC — Articles 1(c) and 37 — Directive 2004/18/EC — First subparagraph of Article 1(8) and Article 55 — Concepts of ‘service provider’ and ‘economic operator’ — Public university hospital — Entity with legal personality and business and organisational autonomy — Principally non-profit-making activity — Institutional purpose of offering health services — Possibility of offering similar services on the market — Admission to participate in a tendering procedure for the award of a public contract

Significant points

  1. It should be noted that the possibility for public entities to participate in tendering procedures for public contracts, in parallel to the participation of private economic entities, is already evident from the wording of Article 1(c) of Directive 92/50, according to which ‘service provider’ is to mean any natural or legal person, including a public body, which offers services. Furthermore, such a possibility to participate was recognised by the Court in the judgment in Teckal, C‑107/98, EU:C:1999:562, paragraph 51, and was repeated in the subsequent judgments in ARGE, EU:C:2000:677, paragraph 40; CoNISMa, EU:C:2009:807, paragraph 38; and Ordine degli Ingegneri della Provincia di Lecce and Others, EU:C:2012:817, paragraph 26.
  2. One of the objectives of the EU rules on public procurement is to attain the widest possible opening-up to competition (see, to that effect, the judgment in Bayerischer Rundfunk and Others, C‑337/06, EU:C:2007:786, paragraph 39), an opening-up which is also in the interest of the contracting authority concerned itself, which will thus have greater choice as to the tender which is most advantageous and most suited to the needs of the public authority in question.
  3. The Court has therefore held that it follows from both the EU rules and the case-law that any person or entity which, in the light of the conditions laid down in a contract notice, believes that it is capable of carrying out the contract is eligible to submit a tender or to put itself forward as a candidate, regardless of whether it is governed by public law or private law, whether it is active as a matter of course on the market or only on an occasional basis (see, to that effect, the judgment in CoNISMa, EU:C:2009:807, paragraph 42).
  4. The provisions of Directive 92/50, and in particular the general principles of freedom of competition, non-discrimination and proportionality which underlie that directive, must be interpreted as not precluding national legislation which allows a public hospital, such as that at issue in the main proceedings, participating in a tendering procedure to submit a tender which cannot be matched by any competitors as a result of the public funding which it receives.
  5. In that regard, even if the referring court considers that it is desirable to identify corrective mechanisms designed to even out the disparities existing between the various economic operators at the outset and which should go further than procedures to check the potentially abnormal character of the tenders, it must be noted that the EU legislature, while being aware of the differences between competitors participating in a public contract, did not make provision for mechanisms other than those designed to check and possibly reject abnormally low tenders.
  6. However, the provisions of Directive 92/50 and the Court’s case-law do not allow, a priori and without further consideration, a tenderer to be excluded from participation in a procedure for the award of a public contract on the sole ground that, as a result of public subsidies which it receives, it is able to submit tenders at prices which are significantly lower than those of unsubsidised tenderers (see, to that effect, the judgments in ARGE, EU:C:2000:677, paragraphs 25 to 27, and CoNISMa, EU:C:2009:807, paragraphs 34 and 40).
  7. In addition, in the course of the examination of the abnormally low character of a tender on the basis of Article 37 of that directive, the contracting authority may take into consideration the existence of public funding which such an entity receives in the light of the option to reject that tender. It should be noted that Article 37 of Directive 92/50 does not contain a definition of the concept of an ‘abnormally low tender’. It is thus for the Member States and, in particular, the contracting authorities to determine the method of calculating an anomaly threshold constituting an ‘abnormally low tender’ within the meaning of that article (see, to that effect, the judgment in Lombardini and Mantovani, C‑285/99 and C‑286/99, EU:C:2001:640, paragraph 67).
  8. That being the case, the EU legislature made clear in that provision that the abnormally low character of a tender must be assessed ‘in relation to the service to be provided’. Thus, the contracting authority may, in the course of its examination of the abnormally low character of a tender, take into consideration, for the purpose of ensuring healthy competition, not only the situations set out in the second paragraph of Article 37 of Directive 92/50 but also all the factors that are relevant in the light of the service at issue (see, to that effect, the judgment in SAG ELV Slovensko and Others, EU:C:2012:191, paragraphs 29 and 30).

Noteworthy

The Court of Justice has reaffirmed that public entities may participate in public procurement tenders and cannot be precluded from doing so under national legislation. Even if these entities receiving public funding may find themselves at a competitive advantage compared to market operators offering services without market funding, no corrective measures are permitted under EU law allowing for the automatic exclusion of abnormally low tenders. The contracting authority, however, may take into consideration the existence of public funding when deciding to reject the tender.

Public procurement – Contracts falling below the threshold laid down in Directive 2004/18/EC

Judgment

C-470/13

18.12.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Reference for a preliminary ruling

Generali-Providencia Biztosító Zrt

V

Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

CJEU

10th Chamber

C. Vajda

M. Szpunar

Public procurement

Keywords

 Public procurement — Contracts falling below the threshold laid down in Directive 2004/18/EC — Articles 49 TFEU and 56 TFEU — Applicability — Certain cross-border interest — Grounds for exclusion from a tendering procedure — Exclusion of an economic operator having committed an infringement of national competition rules, established by a judgment given not more than five years ago — Lawfulness — Proportionality

Summary

  1. In so far as the provisions of the TFEU relied on by the referring court are concerned, it must be observed that, where a public contract does not come within the scope of Directive 2004/18, because it falls short of the relevant threshold laid down in Article 7 of that directive, that contract is subject to the fundamental rules and general principles of that treaty, provided that it is of certain cross-border interest in the light, inter alia, of its value and the place where it is carried out (see, to that effect, judgments in Ordine degli Ingegneri della Provincia di Lecce and Others, C‑159/11, EU:C:2012:817, paragraph 23, and Consorzio Stabile Libor Lavori Pubblici, C‑358/12, EU:C:2014:2063, paragraph 24).
  2. In relation to the exclusion of economic operators from a public contract in the context of freedom of establishment and the freedom to provide services under Articles 49 TFEU and 56 TFEU, it must be observed that Article 45(2)(d) of Directive 2004/18 makes it possible to exclude any operator who ‘has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate’.
  3. It must be observed that the concept of ‘professional misconduct’, for the purposes of that provision, covers all wrongful conduct which has an impact on the professional credibility of the operator at issue and not only the infringements of ethical standards in the strict sense of the profession to which that operator belongs (see, to that effect, judgment in Forposta and ABC Direct Contact, C-465/11, EU:C:2012:801, paragraph 27). In those circumstances, the commission of an infringement of the competition rules, in particular where that infringement was penalised by a fine, constitutes a cause for exclusion under Article 45(2)(d) of Directive 2004/18.
  4. If such a cause for exclusion is possible under Directive 2004/18, it must a fortiori be regarded as justified in relation to public contracts which fall short of the threshold defined in Article 7 of that directive and which are consequently not subject to the strict special procedures laid down in that directive (see, to that effect, judgment in Consorzio Stabile Libor Lavori Pubblici, C-385/12, EU:C:2014:2063, paragraph 37).
  5. The answer to the questions referred is that Articles 49 TFEU and 56 TFEU do not preclude the application of national legislation excluding the participation in a tendering procedure of an economic operator which has committed an infringement of competition law, established by a judicial decision having the force of res judicata, for which a fine was imposed.

Noteworthy

 In this preliminary ruling, the Court of Justice has confirmed that even if a public contract does not come within the scope of an EU directive and national legislation did not make the directive concerned directly and unconditionally applicable to such a contract, the contract may still be subject to the fundamental rights and principles of the TFEU provided it is of certain cross-border interest.

Public procurement — Principles of equal treatment and transparency

Judgment

C-42/13

6.11.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Appeal

Cartiera dell’Adda SpA v CEM Ambiente SpA

CJEU

10th Chamber

C. Vajda

P. Cruz Villalón

 Public procurement

Key-words

Public procurement — Principles of equal treatment and transparency – Directive 2004/18/EC — Grounds for excluding a tenderer from participating — Article 45 — The personal situation of the candidate or tenderer — Compulsory statement concerning the person designated as ‘technical director’ — Statement not included with the tender — Exclusion from the contract without any possibility of remedying that omission

Summary

 Article 45 of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read in conjunction with Article 2 of the directive, and the principle of equal treatment and the obligation of transparency must be interpreted as not precluding the exclusion of an economic operator from a procurement procedure on the grounds that the operator has failed to comply with the requirement laid down in the contract documentation to annex to his bid, on pain of exclusion, a statement to the effect that the person designated in the bid as the operator’s technical director has not been the subject of criminal proceedings or a conviction, even where, at a date after the expiry of the deadline for submitting bids, such a statement has been provided to the contracting authority or it is shown that the person in question has been identified as the technical director in error.First, the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their bids, which therefore implies that the bids of all tenderers must be subject to the same conditions. Second, the obligation of transparency is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications ensuring that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, that the contracting authority is able to ascertain whether the bids submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment in Commission v CAS Succhi di frutta, C‑496/99 P, EU:C:2004:236, paragraphs 108 to 111).

In particular, in so far as the contracting authority takes the view that that omission is not a purely formal irregularity, it cannot allow the tenderer subsequently to remedy the omission in any way after the expiry of the deadline for submitting bids.

Furthermore, in such circumstances, Article 51 of Directive 2004/18, which provides that the contracting authority may invite operators to supplement or clarify the certificates and documents submitted pursuant to Articles 45 to 50 of the directive, cannot be interpreted as permitting such authority to accept any rectification of omissions which, as expressly provided for in the contract documentation, must result in the exclusion of the bid.

Noteworthy

 A rigourous construction of the Directive 2004/18 in the light of the principles of equal treatment and transparency.