Litigating against the outcome of a tender becomes easier: contracting authorities will now have to give all tender documents, including competitors’ bids, to the court.
Losing in a tender is never fun. A tender is often well prepared and involves a lot of time and calculations. The outcome is even harder to digest when, as a bidder, you feel that another bidder has been unfairly awarded the contract. For example, because he does not have the right qualifications or has done something in his tender that is prohibited in the tender instructions, such as tendering at a price not in line with the market or offering an unauthorised discount. As a disappointed bidder, you often don’t get a finger on that, because third-party tenders are confidential and the contracting authority, for example in summary proceedings, does not have to give those tenders to the court.
That is about to change. The Court of Justice of the EU has ruled that proper legal protection implies that the judge must be able to rule in full knowledge of the facts about the documents and whether those documents can be provided to a losing tenderer who brings interlocutory proceedings. Even if the judge concludes that the tender cannot be given, the judge has seen those documents. Thus, the court can itself investigate whether a disappointed bidder is justified in complaining about the correctness of a competitor’s bid.
The ECJ has also ruled that the court can, if necessary, take a new award decision itself. In the Dutch situation, this is not conceivable in summary proceedings. But in proceedings on the merits, it is quite possible that the judge himself could take a different award decision.
Finally, the following is interesting. The case on which the ECJ ruled concerned a tender in which several companies had tendered as a combination. The contracting authority had discovered that one of the combiners had made an incorrect statement about the applicability of grounds for exclusion. The other combiners did not know about the incorrect statement. Nevertheless, the contracting authority had excluded all combiners from further participation. According to the Court of Justice, this is not possible.