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In May, the European Court of Justice addressed two issues relating to public procurement law. Both issues were handled in case C-131/16, Archus and Gama, which concerned a Polish authority’s procurement of services for digitalization of documents. As part of the procedure, tenderers were requested to submit a sample of a microfilm together with a description of the microfilming method. After the time limit for submitting tenders had expired, one tenderer stated that the microfilm sample which it had submitted contained unintentional mistakes and therefore wished to submit a new sample. The contracting authority allowed this as a supplement to the original tender and also requested information regarding the microfilming method as such information had not been provided. Despite providing the requested material, the tender was excluded due to the microfilm’s lacking quality. The only other tenderer was accepted by the contracting authority whereupon the unsuccessful tenderer brought action before a national court.

The action made the national court turn to the ECJ with two general enquiries. The first one related to a contracting authority’s possibility to, after the given time limit, request additional information from a tenderer. The second issue concerned whether an unsuccessful tenderer may submit an appeal which, if the appeal is allowed, would require the contracting authority to annul the entire procurement procedure due to the fact that all submitted tenders should have been excluded.

The ECJ concluded on a general level that the public procurement principle of equal treatment of tenderers prohibits the contracting authority from inviting a tenderer to submit required documentation which has not been submitted within the original time limit. However, the contracting authority may invite a tenderer to clarify a tender or to correct an obvious clerical error in that tender if such an invitation is sent to all tenderers in the same situation, that all tenderers are treated equally and fairly and that such clarification or correction cannot be seen as a new tender. Furthermore, the ECJ concluded that an unsuccessful tenderer is able to request the exclusion of a successful tenderer, despite the fact that the unsuccessful tenderer’s action cannot result in any other consequence than that the entire procurement procedure is to be annulled.

Time Advokatbyrå continuously assists clients from both the public and the private sector in matters regarding public procurement. If you would like to know more about public procurement, please contact Jonas Forzelius, Head of Public Procurement.