Public tenders are not like milk: some thoughts on Case T-553/13 (tender validity)
The General Court decided recently Case T-553/13, European Dynamics Luxembourg and Evropaïki Dynamiki v Joint undertaking Fusion for Energy, EU:T:2015:918. Albert wrote about it in detail here. Although the case pertained to a cascade framework agreement, unfortunately, the crux of the matter was not the cascade style framework in itself - which the applicant did not question - but only incidental issues raised by the applicant. These three issues were:
1. Alleged violation of the principle of non-discrimination and equal treatment
2. Alleged breach of obligation to give reasons for exclusion
3. Damages
The Court dismissed all three claims as baseless with very straightforward arguments. I found particularly ironic that most of the case law cited referred to previous cases brought forward by Evropaïki Dynamiki (seriously). Out of the three claims, the most ludicrous was perhaps the first, with the applicant claiming that evaluating tenders beyond their validity breached the principle of non-discrimination and equal treatment. Yes, because like with milk, tenders apparently go bad after the "best before date".
The General Court found that the obligation to keep a tender valid for a certain period of time only binds the tenderer, not the contracting authority. There is not much to comment here other than this was perfectly obvious to anyone. Having said that, there is something to be asked about the duration of tender assessments overall and how they fit for example, with the principle of good administration and eventually, proportionality. Is it proportional that only one party is to be bound by this obligation? What about the opportunity costs imposed on all participants of not knowing if they have won the contract/got into the framework? But the claimant does not appear to have explored these legal arguments in full.
As Albert argues, the (unadressed) elephant in the room was the cascade style framework agreement model in itself. Under this model, the tenderer with the best tender gets "first dibs" on potential contracts without competition being re-opened. The first question to raise here is the possibility of these arrangements facilitating collusion among the few economic operators admitted to the framework. The second issue is the "crystallisation" of a certain competitive panorama which may be truthful in the moment the framework is established but have zero correspondence with reality further down the line. In consequence, as the tenders (in this case) were fixed for 60 days after the framework was set, what would happen if the economic operator with the best tender decided to change the conditions (either raising price or lowering quality for example)?
It may be that this particular framework included provisions catering to these risks (especially the last one), but then maybe it did not.
PS: As I was busy finishing my Ph.D in the Summer of 2010 I saw a F4E job advert asking for someone with experience dealing with competitive dialogue. By the time I saw the advert, the position had closed three hours before. Dang.