Market Court – The contracting authority had breached its obligations when procuring guarding services by prohibiting subcontracting (MAO:460/16)

The appellant claimed, that the obligatory requirement in the tendering procedure, that the tenderer had to have ownership of an alarm center approved by Finance Finland (Finanssialan keskusliitto) was against procurement legislation as the requirement was too unproportioned and irrelevant.  According to the appellant, the Contracting Authority should have accepted the situation where the tenderer had obtained the use of an alarm center via subcontracting.

The Market Court began analyzing the matter by stating the relevant articles from the Act on Public Procurements 348/2007: the aims and principles of the act, the obligation of the contracting authority to draft a clear invitation to tender and the right of tenderers to submit a tender as a consortium and to rely on the resources of other economic operators. The Market Court also presented a case from the European Court of Justice where it had been stated that a tenderer who relies on the resources of other economic operators can be excluded from the tendering procedure only in the event it fails to appropriately display that the stated resources are truly at its disposal to conclude the procurement.

As a part of the questions and answers regarding the invitation to tender, the contracting authority had clarified the alarm center requirement by stating that the tenderer had to have control of the operative and administrative actions of the alarm center, therefore practically meaning that the tenderer had to have comprehensive control of the company that owned the alarm center being used. The tenderer had informed the contracting authority that the alarm center it owned was not owned by Finance Finland but if need be, it would be willing and able to cooperate via subcontracting with a different alarm center service provider accepted by Finance Finland.

Because of the nature of the services being procured, it was clear that the alarm center was a central element of the entire procurement. The Market Court examined if the requirement, that the tenderer had to practically own the alarm center being used, was in proportion according to public procurement legislation. The conclusion made by the Market Court  was, that the prohibiting of subcontracting is only acceptable in situations where the contracting authority is unable to become certain of the overall acceptability of the selected subcontractors. As the contracting authority had not presented any relevant and acceptable grounds for prohibiting the subcontracting of an alarm center, the Market Court concluded that the conditions of the procurement procedure had been against the Act on Public Procurements.