Public procurement conference 2023

On November 9, 2023, at the Public Procurement Conference, I was able to provide an overview of this year's European Court and General Court rulings in the field of public procurement. The annual conference is a great opportunity to see familiar and new faces and to stay updated on developments in the field.

The conference had over 100 attendees, mainly from the procurers' side, and representatives of suppliers have always been the minority in this yearly event. Perhaps it is time to organize a public procurement conference focused on entrepreneurs? The concerns of procurers and suppliers are quite different, and when offering topics for the conference, speakers still consider the audience - mainly procurers.

But on the topic of my speech, some takeaways from this year's rulings:
💡 Hyperlinks in the bid cannot be considered part of the bid (T-376/21, Instituto Cervantes vs. Commission)
💡 The right to be heard, as provided for in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, applies to procurement procedures, but this right is guaranteed at the time of submitting the bid and by allowing the bidder to seek clarification on the conditions of the tender documents. After the evaluation of bids, the procurer is not obliged to ensure the bidder's right to be heard (T-376/21, Instituto Cervantes vs. Commission)
💡 If the unsuccessful bidder submits a written and substantiated claim to the procurer, asking them to present the reasons why they did not consider the successful bid to be unreasonably low, the procurer must provide a detailed response. Any other interpretation would deprive the unsuccessful bidder of their right to an effective remedy, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union. Indeed, it would be impossible for the bidder to assess whether the procurer's decision that the successful bid is not unreasonably low is justified (C-101/22P, European Commission vs. Sopra Steria Benelux, Unisys Belgium)
💡 Prior breaches of the contract filled as a joint bidder (grounds for exclusion) - every member of a consortium of undertakings who is legally responsible for the proper performance of a public procurement contract must, before temporary exclusion proceedings are initiated against them, have the opportunity to demonstrate that the deficiencies that led to the termination of that contract were not related to their individual conduct. If, after an individual and specific assessment of the activities of the undertaking concerned, taking into account all relevant factors, it emerges that that undertaking did not cause the identified deficiencies and it cannot reasonably be expected that it would have done more to remedy those deficiencies than it did, their exclusion is not justified (C-682/21, HSC Baltic UAB)
💡 Subcontracting is just one way for an undertaking to rely on the capacity of other entities, and the procurer cannot make subcontracting mandatory for a bidder participating in a public procurement contract (C-403/21, SC NV Construct).

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