When to “come clean” in public tender procedures?
Contracting authorities can require tenderers to provide proof of corrective measures in their request to participate or tender.
In its judgment of 14 January 2021 (case C-387/19), the Court of Justice of the European Union (CJEU) clarifies how to apply the rules on corrective measures (also known as “self-cleaning”). The judgment related to a Belgian case in which the contracting authority had excluded a tenderer for “grave professional misconduct”. The excluded tenderer complained that it had not been given the opportunity to demonstrate its reliability by means of corrective measures.
Contracting authorities may and in some cases must exclude tenderers who fall within one of the exclusion grounds of the EU Public Procurement Directive 2014/24. Following a previous ruling by the CJEU, tenderers were already warned that “honesty is the best policy” when disclosing potential exclusion grounds.
Under the current Directive, tenderers may invoke corrective measures to demonstrate their reliability despite being caught by a ground for exclusion. The Directive does not, however, stipulate when or how tenderers should provide proof of these measures.
Judgment of the CJEU of 14 January 2021
In its judgment, the CJEU found that tenderers can be required to provide proof of corrective measures at the time of their request to participate or tender if this requirement is clearly provided for in the national legislation and the tender documents. If neither provides for such a requirement, tenderers must be allowed to provide such proof at a later stage.
This ruling provides useful guidance for tenderers faced with the dilemma of notifying the contracting authority of information concerning optional grounds for exclusion or not. In principle, the contracting authority which finds that the tenderer falls within an exclusion ground must allow the tenderer to demonstrate corrective measures, unless national law and the tender documents required this at the time of the request to participate or tender. Tenderers should therefore carefully examine these before submitting their request to participate or tender.
Coming clean in the ESPD?
The main difficulty remains how transparent tenderers must be when filling out the European Single Procurement Document (ESPD). Earlier case-law suggested that tenderers must actively disclose past events in the ESPD. The above judgment now indicates that tenderers which did not do so, could still be allowed to invoke corrective measures afterwards unless it is stipulated otherwise in national law and the tender documents.
Do not hesitate to contact us if you have any questions on when and how to provide proof of corrective measures.
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