“Meat”/Transparency/Equal Treatment

January 23rd, 2019

Case T-117/17 Proximus v Council of the European Union, concerns the negotiated procedure for a public services framework contract, what constitutes the most economically advantageous tender (“MEAT”), and the lawfulness of a tender evaluation method, in terms of the general principles of transparency, non-discrimination and equal treatment.  The General Court said:-

“48 … it is settled case-law that the contracting authority has a broad discretion as to the choice, content and implementation of the relevant award criteria linked to the contract in question, including those intended to identify the most economically advantageous tender, since those criteria must correspond to the nature, subject matter and specific features particular to each contract and to serve as best they can the targeted needs and objectives pursued by the contracting authority …

49      The criteria adopted by the contracting authority to identify the most economically advantageous tender need not necessarily be quantitative or related solely to prices. It is sufficient that such criteria can be applied objectively and uniformly in order to compare the tenders, and that they be clearly relevant for identifying the most economically advantageous tender …

50      The review by the General Court must be limited to checking compliance with the applicable procedural rules and with the duty to give reasons, whether the facts have been accurately stated, and that there is no manifest error of assessment or misuse of powers. The contracting authority is granted such a broad discretion throughout the tendering procedure, including in relation to the choice and evaluation of the selection and award criteria …

51      The parties’ arguments must be examined in the light of those principles.”
“ 119 It is settled case-law that, in the context of public contracts, the principle of transparency is essentially intended to preclude any risk of favouritism and 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 tendering specifications …

120     Under the principle of equal treatment of tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions … This also means that the award criteria must be formulated, in the tender specifications or the contract notice, in such a way as to allow all reasonably well-informed tenderers exercising ordinary care to interpret them in the same way and that, when the tenders are being evaluated, those criteria are to be applied in an objective and uniform manner to all tenderers …

121     On condition that the abovementioned principles, as interpreted by case-law, are respected, the contracting authority is free to choose the award criteria in the light of which the tenders will be evaluated …”

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