Judgment of 10.07.2025, proc. 01443/24.0BEPRT, Portugal
Article(s) in Directive 2014/24/EU: articles 18(2), 57(4)(a), 69 of Directive 2014/24
Topic: Open procedure, exclusion of offer, compliance with labour law, abnormally low tenders
Member State: PT
Court/rev. board: Supreme Administrative Court
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
2. FACTS
In an open tender for the acquisition of surveillance services by a municipality, the question arose as to whether one of the offers was in compliance with labour law rules, namely, the rules imposing to employers the duty to provide continuous professional training to at least 10% of its workforce per year. One of the bidders claimed that with the number of workers, cost of the work, and cost of the training required, the affected bidder would not be able to provide professional training.
3. JUDGMENT
The Supreme Administrative Court’s decision did not uphold the exclusion. It took the view that there had not been enough evidence of the intended or necessary breach of binding legal provisions for the contracting authority to be able to exclude. According to the Court, an exclusion could only take place if there had been a demonstration that the breach is certain and current, and not just prospective or hypothetical. The labour law provisions in question did not indicate a minimum cost for training, they provided the employer with a lot of flexibility in the organization of the training and did not require workers to be replaced in any specific manner during training.
The decision is thus relevant in terms of the standard of proof that needs to be met to exclude bids on these grounds. It is also relevant, since it another example of a trend – at least in Portuguese law – to try to base exclusions in the “breach of mandatory labour law provisions” exclusion ground and not in the ”abnormally low price” exclusion ground, because the latter implies that the global price is questioned, while the former is apparently based in any kind of breach, with any kind of consequences. It is interesting to see that the abnormally low tender exclusion ground was not analyzed. This ultimately brings forward the issue of the articulation between these exclusion grounds foreseen in the Directive
