Judgment of 7th December 2023 of the SAC (case 0275/22.4BECTB), Portugal
Article(s) in Directive 2014/24/EU: Art. 18(1), 57(4)(c), (d)
Topic: exclusion grounds; linked undertakings; agreements aimed at distorting competition; principle of equal treatment; principle of competition
Member State: PT
Court/rev. board: Supreme Administrative Court (SAC)
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Article 70(2)(g) of the Portuguese Public Contracts Code (PCC).
2. FACTS
Two linked undertakings presented bids in the same tender. A discussion arose as to whether the offers should be excluded on the basis of an agreement aimed at distorting competition [article 70(2)(g) of the Portuguese Public Contracts Code – PCC, which transposes article 57(4)(d) of Directive 2014/24/EU], or another provision.
3. JUDGMENT
The SAC, explicitly referring to case law of the CJEU (cases C-531/16, Specializuotas transportas UAB and C-416/21, Landkreis Aichach-Friedberg c/ J. Sch. Omnibusunternehmen), took the view that the simple fact that there are linked undertakings is not sufficient to cause an exclusion.
It also upheld the ideas, present in the case law, that there is no need for a practice to be illegal under the competition law rules for an exclusion to be required: it is sufficient that the principles of equal treatment and competition are breached, which will happen if the offers are not drafted with guarantees of confidentiality and autonomy in the decision making; bidders should always be allowed to demonstrate that these principles were not breached.
Looking at the facts of the case, the SAC decided that there had been a breach of those principles, based in a series of facts: the fact that the companies shared managers, and some formal aspects of the offers themselves, such as the fact that they had some parts drafted exactly with the same wording (including the same clerical errors). Therefore, the Court upheld the exclusion of those offers as being in accordance with the law. The legal ground for exclusion used was, apparently, article 70(2)(g) of the PCC, correspondent to article 57(4)(d) of the Directive. The use of article 70(2)(g) of the PCC as a legal basis is perhaps debatable, since that provision apparently refers to anti-competitive practices in breach of competition law. Regardless of that, the exclusion seems well grounded in other provisions, namely the general principles of procurement law.
