The Market Court judged that the Public Procurement Act had been breached in a sports field works procurement and obligated the Contracting Authority to pay a compensatory fine of 25 000
In this case the appellant claimed that the winning tenderer had not fulfilled all of the minimum criteria set within the invitation to tender. In the invitation to tender, there had been a requirement of a RALA-certificate in the area of earthworks and water works and three reference contracts of surface structure works similar to the procurement in question within the last five years. In addition, there had been a requirement that the construction crew and the general superintendent had to have relevant experience of surface structure works and appropriate certificates to prove it.
According to the appellant, the tenderers who had placed first and second in the procedure had such deficits in their tenders that they should have been excluded from the procurement procedure. In the winning tender only one of the listed reference works had been a main contract as required. In addition, the tender had not included sufficient information of experience of the person responsible for the entire works. The tender that had placed second also didn’t fulfill all of the minimum requirements set forth within the invitation to tender.
The Market Court examined the references in question. The winning tender had included a list of 15 different sports field works that the tenderer had been included in. The tenderer had not been a main contractor in three or more of the contracts. As the winning tenderer had not specified what works it had performed when in the position of a subcontractor, the tender did not include sufficient information to assess whether or not these works had been sufficiently similar to the procurement in question. As the winning tender did not include enough information to conclude that the tenderer had the amount of experience required in the invitation to tender, the winning tenderer should have been excluded from the procurement procedure. The Market Court stated that also the tenderer who had placed second should have been excluded because some of the required information that demonstrated the vocational expertise had been missing.
As the contracting authority had violated some provisions of the public procurement legislation but the works contract had already been signed, the Market Court moved onto assessing if there were grounds for ordering a compensatory fine to be paid by the contracting authority. In the procurement procedure the contract had been awarded to the tenderer with the lowest price. The tender submitted by the appellant had placed third. As the first two tenders should have been excluded according to public procurement legislation, it was rather clear that in a procurement procedure executed according to legislation, the appellant would have had a likely chance of winning the contract. The Market Court ordered the contracting authority in question to pay 25 000 euros as a compensatory fine.