Mari Ann Simovart, Bettina Tugendreich, Ján Azud, Joseph Kunz

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 99 - 111

This article discusses Article 69 of Directive 2014/24/EU, analysing basic concepts like abnormally low tender, indicating how an abnormally low tender should be identified by the contracting authority and the steps necessary to reach a balanced conclusion on a low-priced tender’s (ir-)regularity. This article explains the meaning of abnormally low tenders from the EU law perspective, providing a basis for the following articles in this special edition of the journal. Keywords: abnormally low tender; Directive 2014/24/EU; Public Sector Directive; Article 69

Christopher Bovis, Deividas Soloveičik

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 112 - 120

Traditionally and through the evolution of the Public Procurement acquis, works contracts subsidised directly by more than 50% by Member States could fall within the scope of the Works Directive.1 Works that were not subsidised directly, or for less than 50%, fell outside of this anti-circumvention provision. Not all subsidised works fall within the scope of public procurement regulation: only civil engineering works, such as the construction of roads, bridges and railways, as well as building work for hospitals; facilities intended for sports, recreation and leisure; and university buildings and buildings used for administrative purposes are referred to as ‘subsidised works contracts’.2 That list was exhaustive. The Works Directive did not apply to works contracts which are declared secret or the execution of which must be accompanied by special security measures3 in accordance with the laws, regulations or administrative provisions in force in the Member State concerned; nor does the Directive apply to works contracts when the protection of the basic interests of the Member States’ security so required. Finally, the Works Directive did not apply to public works contracts awarded in pursuance of certain international agreements;4 nor did the Directive apply to public works contracts awarded pursuant to the particular procedure of an international organisation5 such as NATO, which has their own rules on the awarding of public works contracts. The new codified Public Sector Directive has introduced a series of new concepts that are the product of jurisprudential inferences and policy refining of the previous legal regimes. They intend to modernise public purchasing, aligning the procurement of government and its agencies with those of utilities that operate in more commercially-oriented environments. Keywords: abnormally low tender; predatory pricing; subsidies

Wojciech Hartung, Tomasz Zielenkiewicz

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 121 - 128

One of the elements explicitly indicated in Article 69 of Directive 2014/24/EU that should be taken into account by the contracting authority when assessing the credibility/reliability of a tender is the question of State aid received by a contractor and its impact on the price the contractor offers (Article 69(2)(f) of Directive 2014/24/EU). Keywords: public procurement; abnormally low tender; State aid; economic advantage

Katarzyna Kuźma, Caroline Lagendijk, Natalia Olmos

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 129 - 138

From the perspective of contracting authorities, the issue of abnormally low prices in public procurement is extremely important. This is not only because both the procurement Directives and national legislation in individual EU Member States require authorities to take certain steps to examine whether tenders submitted in a procedure contain an abnormally low price, but it is also important from a purely economic and organisational perspective. At the same time, the recent market instability has compounded the difficulties faced by contracting authorities in making rational decisions and pursuing pricing policies. This article takes the contracting authorities’ perspective, examining the powers and responsibilities that such authorities have when examining abnormally low prices and the practical difficulties of doing so. Keywords: contracting authorities; abnormally low price; tender; obligation to examine; assessment; rejection

Mari Ann Simovart, Marit Piirisaar

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 3, Page 144 - 157

Incomplete tenders and missing information seem to be a known constant in public procurement, confronting contracting authorities with legal challenges and critically influencing the results of public purchasing. Faced with a non-conforming tender that cannot be accepted, a contracting authority must choose between two options: to reject the tender or to ask for correction of mistakes in the tender. Exceptionally, instead of the option to clarify, the requirement of proportionality may justify an obligation to do. Subject to a complex discretionary decision, making the choice between a rejection and a clarification has to follow the general principles of EU public procurement law and good administration as well as the national administrative law rules. This article looks at the topic with the help of examples from Estonian case-law. By analysing both the relevant procedural and substantial rules, we draw guidelines to assist navigating the legal maze of conflicting considerations that concern the correction of mistakes and clarification of ambiguities in public procurement tenders. Keywords: clarification of tender; correction of mistake in tender; principle of proportionality

Federica Maldari

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 1, Page 75 - 79

The case deals with the interpretation of Article 7(2) and (4) of Regulation (EC) 1370/2007 on public passenger transport services relating to the direct award of the public service contract, by paying attention to the opening of the transport services sector to competition. The request for a preliminary ruling under Article 267 TFEU concerning the interpretation of those provisions was part of the proceedings between the Italian Competition Authority and the Region of Sardinia on the direct award of the contract for the transport of passengers by rail to Trenitalia S.p.A. by that Region. The referring Court asked the Court of Justice whether those provisions must be interpreted as meaning that the competent authority which intends to award a contract directly must take the necessary steps to open the transport services sector to competition by publishing or communicating, to all interested economic operators, all the information necessary to allow them to submit a serious and reasonable offer, and by carrying out a comparative assessment of all bids. Keywords: Direct award procedure; Tender procedure; Public passenger transport services; Competition; Bids; Prior information notice; Comparative assessment; Obligation of motivation.

Giuseppe Bitti

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 2, Page 129 - 133

The Case deals with the exclusion from procurement procedures of tenderers which are part of the same association, due to possible collusions among them. The Court of Justice of the European Union was asked whether national legislation which foresees additional exclusion grounds, forbidding undertakings which are part of the same associative or corporate structure from participating in tendering procedures through a common proxy, complies with EU law. The Court clarified the issue, and confirmed that the general principles of equal treatment, transparency and non-discrimination allow national legislation to foresee further grounds for exclusion, in addition to those mentioned by Directive 2004/18. Such legislation shall nonetheless comply with and be interpreted according to the equally important principle of proportionality.