Judgment of 20th December 2023 of the SAC (case 0693/20.2BELSB), Portugal
Article(s) in Directive 2014/24/EU: 18(1), 58, and 67(2)
Topic: award criteria; link to the subject-matter of the contract; selection criteria; principle of equal treatment; principle of competition
Member State: PT
Court/rev. board: Supreme Administrative Court (SAC)
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Articles 1-A, 74, 75 and 164 of the Public Contracts Code (PCC)
2. FACTS
In a restricted procedure for a framework agreement aimed at the provision of hospital waste management services, going up to a value of 18M€, the tender documents were challenged in court on the basis that they contained factors which valued the facilities and equipment of the bidders, rather than the quality of the offers.
The factors in question were several. One of them referred to the number of hospital waste disposal facilities which the bidders had access to, the second to the size of the refrigerated area in those facilities, the third to the existence of a water treatment station in the premises, the fourth to the existence of a station for washing the vehicles which transport the waste, the fifth to the existence of a machine for washing containers, and the sixth to the existence of radioactivity detection equipment.
3. JUDGMENT
The first and second instance courts annulled the said provisions of the tender documents. The SAC confirmed these rulings in third instance. It should be noted that although the decision concerned the lawfulness of the tender documents themselves, it also ended up by including the decisions taken during the procedure, since the procurement continued to unfold while the lawsuit was under way.
The contracting authority argued that the abovementioned factors of the award criteria were linked to technical and environmental requirements, thus making them admissible. However, the Court disagreed, and remarked that the factors did not evaluate those requirements in themselves, but rather the access of the bidder (at the time of the tender) to facilities with those characteristics, which it considered as a point regarding the bidders, not the quality of the offers. The Court pointed out that, being this a restricted procedure, these aspects should have been evaluated as selection criteria and could not have been included as award criteria.
In addition to the previous considerations, the SAC also upheld another reason used to challenge the award criteria in question. In fact, not only did they refer to qualities of the bidders (according to the Court), but there were also some indications that the specific factors chosen were “tailored” to match one of the bidders’ characteristics, thus breaching the principle of competition provided for in article 1-A(1) of the PCC [which can be said to transpose the equivalent reference in article 18(1) of the Directive]. One of the indicators of this “tailormade” nature of the factors, according to the Court, was the fact that the bidder in question achieved maximum points in all the mentioned factors of the award criteria.
