The principle of equal treatment of tenderers was not infringed when the contract was awarded to a tenderer which originally consisted of two companies, one of which was declared insolvent during the procurement procedure

In a recent case from the European Court of Justice, C-396/14, the court evaluated whether it was contrary to the principle of equal treatment to allow an operator to take part alone in the procurement procedure when one operator, from an original group of two operators, had been declared insolvent during the procurement procedure. Using a negotiated procedure, the contracting entity had pre-selected and invited five economic operators to tender for a public contract for the construction of a new railway line. After pre-selection, one of the undertakings withdrew from the procedure, leaving four pre-selected tenderers remaining. One of these tenderers, a group of operators “A” and “B”, submitted a first tender, even though operator “B” had just been declared insolvent and the liquidator would not sign the tender. The contracting entity decided to allow operator “A” to take part alone in the procedure. The claimant claimed that allowing operator “A” to continue participating in the procedure in the place of group “A” and “B” infringed the principles of equal treatment and transparency, because operator “A” had not itself been pre-selected and invited to tender.

The ECJ stated that a strict application of the principle of equal treatment of tenderers would lead to the conclusion that only those economic operators who had been pre-selected could, in that capacity, submit tenders and be awarded the contract. However, the ECJ also held that the requirement of legal and substantive identity could be qualified to ensure, in a negotiated procedure, adequate competition as required by the law. This resulted from the fact that preventing operator “A” from continuing to participate in the procedure in the place of group “A and “B” would have reduced the amount of pre-selected tenderers to three.

Consequently, the contracting entity was not in breach of the principle of equal treatment where it permitted one of two operators, who formed part of a group of undertakings that had, as such, been invited to submit tenders by that group of operators, to take the place of that group following the group’s dissolution. Nor was it a breach to take part, in its own name, in the negotiated procedure for the award of a public contract, provided that two principles were established. First, that the economic operator by itself met the requirements laid down by the contracting entity and, second, that the continuation of its participation in that procedure did not mean that the other tenderers were placed at a competitive disadvantage.