CJEU – Possibility to supplement the tender — Possibility to rely on the capacities of other entities — Exclusion from participation in a public contract for serious misconduct

Judgement rendered by the Court of Justice (CJEU – 4 May 2017 – C-387/14 – Esaprojekt) under the old Directive 2004/18, however the solutions should be the same for the procurement procedures launched according to the new directive 2014/24 .

Possibility to supplement the tender

The Court recalls that, as a general rule, a tender cannot be amended after it has been submitted, whether at the request of the contracting authority or at the request of the tenderer concerned. It follows that, where the contracting authority regards a tender as imprecise or as failing to meet the technical requirements of the tender specifications, it cannot require the tenderer to provide clarification.

However, this principle does not preclude the correction or amplification of details of a tender, on a limited and specific basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors.

Possibility to rely on the capacities of other entities

General rule : the right of every economic operator to rely, for a particular contract, upon the capacities of other entities, 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 resources necessary for the performance of the contract.

However this principle does not prevent the contracting authority to require that the minimum capacity level concerned be achieved by a single economic operator, if there are exceptional circumstances (such as for example works necessitating a certain capacity which cannot be obtained by combining the capacities of more than one operator) and as long as that requirement is related and proportionate to the subject matter of the contract at issue.

Other point underlined: where an economic operator relies on the experience of a group of undertakings in which it has participated, that experience must be assessed in relation to the effective participation of that operator and, therefore, to its actual contribution to the performance of an activity required of that group in the context of a specific public contract.

An economic operator cannot therefore rely on the supplies of services by other members of a group of undertakings in which it has not actually and directly participated as experience required by the contracting authority.

False declarations : is it necessary that the candidate/tenderer acted intentionally? no

In order to consider the candidate/tenderer as being guilty of ‘serious misrepresentation’ within the meaning of that provision in order to exclude it from a public contract, it is sufficient if the candidate/tenderer is guilty of some degree of negligence which may have a decisive effect on the decisions to exclude candidates from being selected or awarded as public contract.