Decision of the Higher Court of Justice of Madrid, February 22nd, 2023, (Roj: STSJ M 1886/2023 – ECLI:ES:TSJM:2023:1886), Spain
Article(s) in Directive 2014/24/EU: Art. 28; Art. 58; Art. 57.4.h)
Topic: Selection criteria in the restricted procedure; exclusion of the bidder
Member State: Spain
Court/rev. board: Higher Court of Justice of Madrid
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Transposition of the rules for the restricted procedure mentioned in Art. 28 of Directive 2014/24/EU is in Articles 160 to 165 of the Law 9/2017, of November 8, on Public Sector Contracts.
2. FACTS
An economic operator participates in the tender for a concession contract for cafeteria services. The award is carried out by means of the restricted procedure. The first phase of the procedure, request for participation, ended at 3:00 p.m. on August 13, 2020. The contracting committee confirms that the corporate goal of the company does not mention or refer to the purpose of the contract that is being tendered and that it does not attach to a current professional civil liability insurance contract. To correct this deficiency, the company submits a modification of its statutes in a public deed of August 17, and a professional civil liability insurance signed on August 14. The contracting committee excludes the company, since it does not meet the conditions of capacity and solvency before the final term for the presentation of the participation request. The company invokes that, in accordance with the provisions of article 140.4 of the Spanish Law on Public Sector Contracts, the circumstances related to the capacity, solvency and absence of exclusion grounds must exist on the final date for the submission of offers and subsist at the time of completion of the contract and not on the deadline for the request for participation, as the contracting committee argues.
3. JUDGMENT
The Higher Court of Justice of Madrid dismissed the claim arguing that, since the requirements related to the capacity and solvency of the bidders in the restricted procedure have to be assessed in the first phase of said procedure, they will have to be fulfilled before the end of the term to submit the application in that first phase, the fulfillment not being possible in the later term for the presentation of the offers. In other words, in the restricted procedure, the first phase has the sole and exclusive purpose of verifying, among other prerequisites, the personality and solvency of the applicants, so both requisites must be demonstrated and fulfilled in that first phase. The plaintiff did not meet the capacity and solvency requirements at the end of the first period – that is, the period for receiving the requests to participate in the contractual procedure. The afore mentioned statement has not an obstacle in the provisions of article 140.4 of the Spanish Law on Public Contracts; because, although the capacity and solvency requirements, and the non-existence of exclusion grounds, must be displayed on the date of the presentation of offers and also later, this does not prevent that, in the restricted procedure, they must be fulfilled at an earlier moment, which is the final date of the presentation of applications. On the contrary, in the ordinary procedure, there are not two phases prior to the award, but only one; so, it will be possible to demonstrate the compliment with the capacity and solvency requirements until the end of this single phase.
