In this case, the Danish education ministry ran a procurement for services to guidance centres for people hoping to go on to higher education. It was to be a part B services contract.
There was a selection stage. As part of the assessment of economic and financial standing, hopeful tenderers were asked to submit balance sheets together with their application to be considered for tendering. The day after the deadline for that had passed, two providers had not sent in their balance sheets. The Ministry emailed them and asked them to forward them on (which they promptly did within a day or two).
These two providers, plus the claimant in this case, were chosen to be invited to tender. After evaluation, those two providers won and the Ministry signed contracts with them. The claimant was unsuccessful and brought the claim, alleging that the Ministry should not have given them a further opportunity to send in their balance sheets when they had missed the deadline. The Danish court stayed the action and made a reference to the European Court, asking whether the principle of equal treatment meant that the Ministry was prohibited from asking for the balance sheets.
The court first noted that, although this was a part B services contract, because there was a cross border interest, the general principles of the EC Treaty would apply and therefore that the Ministry had been under a duty to act transparently and ensure non-discrimination and equality of treatment. The court looked at the SAG case which concerned clarification or amplification of a tender received after the bid deadline. The judgment in the SAG case stated that it would not be possible to allow a bidder to amend a bid after the bid deadline but that however clarification or correction of material error could be permitted provided certain guidelines were followed the EU principles were respected and the clarification/correction did not amount to the making of a new bid.
The court decided that the same principles should apply in this case even though here it was dealing with applications filed for the purposes of the selection stage rather than actual bids submitted. On that basis the court was prepared to allow the Ministry to ask for the balance sheets after the deadline provided that it could be shown that the balance sheets pre-dated the deadline; in short provided that no advantage was gained by the two bidders concerned. The court also commented that had the procurement documentation expressly stated that failure to provide information would lead to the exclusion of that bidder it would not have permitted the Ministry to request the information after the bid deadline as this would amount to a breach of the principle of transparency as the Ministry would be acting in a manner contradictory to its own stated process.
The case is not new law but it does provide an interesting rehearsal of the approach the court is likely to take in these situations and it confirms that the court will treat clarifications at selection stage and award stage in the same way. In order to preserve as much flexibility to clarify as possible contracting authorities may wish to consider making sure that no absolute statements are made in the contract documents about automatic exclusion of incomplete applications for selection/bids. Where the contract documents do contain this kind of statement suppliers should be extra careful to submit compliant bids as the contracting authority will have little or no flexibility to request clarifications.
The judgment is available here Case C?336/12 - Ministeriet for Forskning Innovation og Videreg?ende Uddannelser v Manova A/S judgment of 10 October 2013.