Some comments on Ambisig (Case C‑601/13) and assessing experience at tender stage

I am sometimes* surprised at the interpretation(s) given to some sentences/decisions of the Court of Justice. Lianakis (C‑532/06) is one of those. For me its meaning has always been quite clear: the contracting authority is precluded from analysing past experience at the tender stage if unconnected with the actual performance of the contract. This distinction is particularly important to notice when we talk about human resources which, by default are the input per excellence in any consultancy contract and have a direct effect on the quality of the output.

In other words, when experience is important to determine the absolute and relative quality of the the proposed contract performance (ie, the tender) there is no reason why it should not be taken into account. Naturally, all performance-irrelevant experience elements should not be assessed at the tender stage.

Not allowing team experience to be used at the tender stage is akin at barring contracting authorities from assessing the quality of steel to be used on a public works contract. It just makes no sense. Therefore, I am surprised how quite a few years after Lianakis that aggrieved bidders still try to throw mud against this particular wall in hope it sticks. In Ambisig, correctly it didn't. The decision by the Court is not particularly interesting, but if anyone still has any doubts about Lianakis' reach, please read Advocate-General Wathelet's opinion. Very easy to read, clear and to the point. As a bonus, it also addresses the issue under Directive 2014/24/EU which is effectively solved in Article 67(2).

The reason why I am commenting on Ambisig now is very mundane.  I had dinner with the counsels to both parties in the case last week during the Catolica's Procurement Summer School. We could not resist at dragging the case once more into the light and have a light hearted discussion about it. The counsel for Ambisig even tried an impassionate defense of his client's merit but (once more) unsuccessfully. In that same dinner I promised the quarrelling parties to comment on the case, so Ana, Debora and Henrique, here it is!

PS: I am surprised the preliminary ruling reference was accepted by the Court of Justice in the first place...

* Having said that, over time the readability and intelligibility of the CJEU decisions is getting worse and worse.