ECJ: Tenderer who has been definitely excluded from a public procurement procedure cannot challenge an award decision

A recent case from the European Court of Justice, C-355/15, rules that a tenderer who has been excluded from a public procurement procedure by a contracting authority which has become final, and who is therefore not a tenderer concerned according to the law, cannot challenge the decision awarding the public contract concerned and the conclusion of the contract. ECJ ruled that this binds in a situation where only that unsuccessful tenderer and the successful tenderer have submitted tenders and the unsuccessful tenderer maintains that the successful tenderer’s tender should also have been rejected.

ECJ compared the issue of this case to the situations of two of its previous cases (Fastweb C-100/12 and PFE C-689/13). The situation in this case is very clearly distinguishable from the two previous cases since the tenders of the tenderers concerned in the two previous cases had not been subject of an exclusion decision of the contracting authority, unlike the tender submitted by the unsuccessful tenderer in this case. Secondly, it was in the course of the same, single set of review proceedings relating to the award decision that, in both previous cases, each tenderer challenged the validity of the other tenderer’s tender, each tenderer having a legitimate interest in the exclusion of the tender submitted by the other. In this case, by contrast, the unsuccessful tenderer brought an action, first, against the exclusion decision adopted in respect of it and, secondly, against the award decision, and it is in the course of that second set of proceedings that it contends that the successful tenderer’s tender should be considered unlawful.

It follows that the principle of case-law stemming from the two previous cases does not apply in this case and the unsuccessful tenderer is being refused from access to the review of the award decision, provided that the unsuccessful tenderer must be considered a definitely excluded tenderer according to the law. However, EJC notes that the law ensures effective review of unlawful decisions adopted in the context of public procurement procedure, by enabling any excluded tenderer to challenge not only the exclusion decision, but also, as long as that challenge has not been resolved, the subsequent decision which would harm the tenderer if its exclusion were annulled.