CJEU clarifies distinction between selection criteria and performance conditions
On July 8, 2021, the Court of Justice of the European Union (CJEU) ruled in case C-295/20 (Sanresa) that a waste shipment permit cannot be imposed as a selection criterion. Consequently, it is not permissible to exclude tenderers from participating in an award procedure because they do not hold such a permit.
Permit as a selection criterion or performance condition?
In the context of an award procedure for a public contract concerning the management of hazardous waste, Sanresa was excluded because it did not have a permit to transport hazardous waste across the border. However, following a preliminary question, the CJEU ruled that such a permit does not qualify as a selection criterion, but as a condition for performing the contract. More specifically, the permit is not to be considered a license (or membership of an organization) to provide a particular service that related to the suitability of a tenderer (within the meaning of Article 58(2) of the Public Procurement Directive 2014/24).
Exclusion not allowed
As the permit does not qualify as a selection criterion, the tenderer cannot be excluded from participating in the award procedure on the sole ground that it does not have such a permit. It is sufficient that the tenderer has it at the time of the award of the contract.
Interestingly, the CJEU also emphasized that, according to Article 58 of the Public Procurement Directive 2014/24, tenderers must meet the selection criteria at the time of submission of their tender. It is unclear whether contracting authorities can derogate from this principle by providing in the tender specifications that they will also select tenderers who only meet the selection criteria at a later stage.
Failure to mention permit requirement
Subsequently, the CJEU ruled that the failure to mention this permit requirement in the contract notice or tender specifications could not lead to the irregularity of the procedure, as this requirement clearly follows from the rules applicable to the cross-border transport of the waste in question.
This judgment clarifies that technical requirements not relating to a tenderer's suitability to perform an activity in general may not lead to exclusion. Contracting authorities wishing to avoid a situation where the successful tenderer does not comply with such a requirement are advised to request references of previous contracts where tenderers had to comply with this requirement.
Do not hesitate to contact us if you have any questions regarding the qualification and application of criteria in public tenders.
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