Rejection of a tenderer’s bid

March 6th, 2019 by James Goudie KC

In Cases T-439/17 and T-450/17, Yellow Window v EIGE and Eurosupport v EIGE, the EU General Court gave Judgment on 5 March 2019 in relation to a tender procedure for the provision of a public service.  The cases arose out of the obligation to state reasons for the rejection of tenderers’ bids. The Court reiterated that the duty to state reasons is an “essential” procedural requirement.  It is distinct from the question whether the grounds given are correct.  The Court said:-

“… the obligation to state reasons laid down in Article 296 TFEU presupposes that the reference to the strengths and weaknesses of a tender enables the tenderer concerned to understand the marks awarded in the light of the criteria and sub-criteria of the specifications … A correlation must therefore exist between comments identifying strengths and weaknesses, on the one hand, and the marks awarded in relation to those criteria and sub-criteria, on the other hand. Moreover, the statement of reasons must show clearly and unequivocally the reasoning of the author of the act, in such a way as to allow (i) interested parties to know the justifications for the measure taken in order to assert their rights and (ii) to enable the Court to exercise its power of review … More specifically, Article 113(2) of the Financial Regulation requires the contracting authority to provide the tenderer with the real reasons for the rejection of its tender. A statement of reasons which does not identify the true basis of the decision rejecting a tender and which does not faithfully reflect the manner in which the rejected tender was assessed is not transparent and does not satisfy the obligation to state reasons laid down by the latter provision …

 It follows from the foregoing that, failing a justification which is neither consistent nor unequivocal nor transparent, the mark awarded to a tender on the basis of which it will be classified must, as a matter of principle, be a reflection of the strengths and weaknesses identified by the evaluators in their comments.”

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