Judgment of 27th January 2022 of the SAC (1st Section) (case 0172/21.0BEBRG), Portugal
Article(s) in Directive 2014/24/EU: Art. 18(1), Art. 56(3)
Topic: Exclusion grounds (regarding the offer); clarification of the offer
Member State: Portugal
Court/rev. board: Supreme Administrative Court
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 72(3) and (4) of the Portuguese Public Contracts Code (PCC, adopted by Decree Law 18/2008, of 29 January, with amendments, the current version resulting from Decree Law 78/2022, of 7 November), which are considered to transpose article 56(3) of Directive 2014/24/EU.
In the version in force at the relevant time of the facts (the provision has since been changed in the last amendment to the Code, of November 2022), article 72(3) provided the following: “The jury will ask those who presented a request for participation or an offer to, within 5 days, proceed to the supplementation of their offers or requests for participation affected by non-compliance of non-essential formalities and that require supplementation, which includes the submission of documents meant to prove facts or qualities prior to the date of submission of the offer or request for participation, and provided that this supplementation does not affect competition and equal treatment.”
2. FACTS
The case refers to an open procedure carried out by a municipality for the purchase of computers with Internet connection.
One of the bidders had seen his offer to lots 1 and 3 of the tender excluded, based on failure to present, with his offer in those lots, a certificate which was required in the tender documents – the TCO Certificate (“or equivalent”, as accepted in the tender documents), which is a certificate attesting the conformity of IT products with sustainability requirements. The bidder challenged this decision in the Administrative Court, offering evidence that he held the TCO Certificate with a date of validity which was prior to the submission date in this tender. The first instance Administrative Court quashed the contracting authority’s decision to exclude this offer and was accompanied by the second instance (Central Administrative Court of the North), which confirmed the ruling. The case, then, reached the Supreme Administrative Court on appeal, leading up to the decision in comment here.
3. JUDGMENT
The Court considered that the environmental certificate could, in this case, be presented after the deadline for submission of tenders elapsed, since it does not change any technical characteristics of the offer and refers to facts which took place before the submission date.
The reasoning in the decision is rather succinct: the Court clearly considered this to be a case that, under existing law and its interpretation by case law, was not difficult to solve.
First, the Court deemed relevant that the certificate that was not presented was pointed at certifying qualities of the goods to be supplied, and therefore, it could not change those qualities. In addition, the certificate itself had already been issued prior to the date of submission of offers. The Court mentioned that Art. 72(3) of the PCC explicitly mentions that it is possible to present documents that refer to qualities or facts that existed prior to submission date. One might also add that whilst Art. 56(3) of the Directive does not contain the same reference, case law of the ECJ has accepted the nature of the document (namely, that it relates to previously existing information) as relevant for the decision to allow clarification/supplementation of tenders. The Court also referred to the fact that the certificate in question did not refer to the contents of the offer and, consequently, was irrelevant for the application of the award criteria. Finally, the Court also made explicit reference to proportionality.
In support of its decision, and in addition to several pieces of case law of the Portuguese Administrative Courts and the Portuguese Court of Auditors (“Tribunal de Contas”), the Supreme Court made explicit reference to ECJ case law, namely the decisions in Antwerpse Bouwerken, T-195/08; Manova, C-336/12; Cartiera dell’Adda, C-42/13; and Pippo Pizzo, C-27/15.
For a more complete discussion, it seems the Court should have addressed specifically the fact that, according to the appelant, the tender documents of the procedure apparently indicated the failure to include the TCO Certificate in the offer as grounds for exclusion of the offer. Considering the case law of the ECJ, this point could be relevant, even though the same case law does not seem to exclude that the solution would have been the same.
Link to the original judgement (PT) here.
