Judgment of the Supreme Court, February 23, 2026, (ECLI:ES:TS:2026:881)
Article(s) in Directive 2014/24/EU: Art. 69
Topic: Abnormally low tenders
Member State: ES
Court/rev. board: Supreme Court
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
The case concerns the interpretation of the Spanish Public Sector Contracts Act, Law 9/2017 of 8 November (Ley de Contratos del Sector Público – LCSP), in particular Article 149, which regulates the treatment of abnormally low tenders and transposes Article 69 of Directive 2014/24. The dispute focused on the procedure to be followed after an abnormally low bid has been excluded and, specifically, whether the contracting authority must simply move to the next-ranked tenderer or must carry out a fresh evaluation of the remaining valid financial offers.
2. FACTS
The Xunta de Galicia (Regional Government) launched a public procurement procedure for the provision of school transport services divided into several lots. Following the evaluation of the tenders, the contracting authority identified one bid as abnormally low and excluded it after the procedure provided for in Article 149 LCSP.
The dispute arose because, after excluding that tender, the contracting authority recalculated the scores awarded under the economic criterion and produced a new ranking of the remaining bids before awarding the contract. The unsuccessful tenderer argued that the original ranking should have been maintained and that the contract should simply have been awarded to the next bidder in that initial classification, without reassessing the economic scores.
The Regional Public Procurement Review Tribunal partially upheld the administrative challenge, and the High Court of Justice of Galicia subsequently confirmed that approach. The case reached the Supreme Court on appeal in cassation to clarify the correct interpretation of the LCSP.
3. JUDGMENT
The Supreme Court dismissed the appeal and confirmed that, where an abnormally low tender is excluded, the contracting authority must recalculate the scores of the remaining valid economic offers and produce a new overall ranking applying all the award criteria established in the procurement documents.
The legal issue before the Supreme Court was to determine, once an abnormally low tender had been identified and excluded under Article 149 of the Spanish Public Sector Contracts Act (LCSP), whether it was necessary to:
(i) Simply award the contract to the next-ranked tenderer according to the initial ranking (the appellant’s argument, based on the premise that the ranking is unique and cannot subsequently be altered); or
(ii) Carry out a new assessment of the remaining financial offers (by recalculating their scores) and establish a new ranking based on all the award criteria set out in the procurement documents (the approach adopted by the lower court and ultimately confirmed by the Supreme Court).
The legal doctrine established by the Supreme Court provides that, where the procurement documents establish multiple award criteria (rather than price alone) and the score for the financial offer depends on the lowest bid submitted (with the maximum score awarded to the lowest bid and the remaining bids scored proportionally), Articles 149(6) and 150(1) of Law 9/2017 on Public Sector Contracts (LCSP) must be interpreted as meaning that it is lawful to:
- Carry out an initial financial evaluation of all tenders solely for the purpose of determining whether any of them are presumed to be abnormally low and, where appropriate, initiate the procedure provided for in Article 149 LCSP. This initial assessment does not constitute the “ranking” referred to in Article 150(1) LCSP.
- If the abnormally low tender is excluded, conduct a new financial evaluation of the remaining tenders, disregarding the excluded bid, and only then establish the single final ranking of the tenders by applying all the award criteria set out in the procurement documents, including both automatically assessed criteria and criteria involving evaluative judgment, without reopening the assessment of the latter.
According to the Court, this “two-stage financial evaluation”—an initial assessment to identify potentially abnormally low tenders followed by a second assessment to establish the final ranking—does not infringe Articles 149(6) and 150(1) LCSP or the principles of equal treatment, transparency, and proportionality. On the contrary, it is the mechanism that ensures the contract is ultimately awarded to the tender offering the best value for money once the economically unviable tender has been removed.
The judgment has significant practical implications.
For tenderers, particular attention should be paid to the automatic scoring formulas contained in the procurement documents, especially those awarding the maximum score to the lowest-priced tender. The exclusion of an abnormally low bid may substantially alter the final scores and may even change the successful tenderer.
For contracting authorities, the judgment provides legal certainty for the common practice of recalculating automatically assessed criteria after the exclusion of an abnormally low tender. It is no longer tenable to argue that the initial ranking is definitive and immutable from the outset.
From the perspective of legal certainty, tenderers will be able to verify with greater confidence whether the contracting authority has followed the correct sequence of steps—initial assessment to identify abnormally low tenders, exclusion where appropriate, recalculation of the financial scores, and final ranking based on all the award criteria—and, where necessary, challenge any failure to comply with that sequence.
In summary, the Supreme Court endorses what is commonly described as the “re-ranking” of tenders—or, more accurately, the correct sequence of evaluation—where the procurement documents contain interdependent automatic award criteria and an abnormally low tender has been excluded.
In other words, the Court held that the initial classification cannot be regarded as final once one of the tenders has been excluded, because the economic scoring of the remaining bids may change when the excluded bid is removed from the comparison. Simply promoting the next-ranked bidder without recalculating the scores would undermine the principles of equal treatment, objective evaluation and award to the most economically advantageous tender.
Accordingly, the Supreme Court established as binding case law that the exclusion of an abnormally low tender requires a new evaluation of the remaining valid tenders, including a fresh calculation of the economic criterion where the scoring formula depends on the bids submitted, followed by a new classification prior to the award of the contract.
