I INTRODUCTION

EU procurement law is set out in four principal directives, namely the 2014 Public Contracts Directive, the 2014 Utilities Contracts Directive, the 2014 Concession Contracts Directive (together 'the 2014 Procurement Directives') and the Defence and Security Procurement Directive.2 Additionally, rules on remedies for breach of these four principal directives are set out, in respect of the 2014 Procurement Directives, in the Public Sector Remedies Directive and the Utilities Remedies Directive3 and, for defence, are written into the Defence and Security Procurement Directive. In this chapter, 'the Directives' means all six of these procurement directives.

Member States were given until 18 April 2016 to transpose the 2014 Procurement Directives into national law.

Overriding principles of EU law, referred to as the 'Treaty principles', have been developed by the Court of Justice of the European Union (CJEU) on the basis of freedoms in the EU Treaties. These principles include free movement of goods and services within the EU, freedom of establishment, non-discrimination on grounds of nationality, equal treatment, transparency, proportionality (i.e., fairness) and mutual recognition.

In cases before the CJEU, the Court may decide that an official opinion from the Advocate General (AG) is necessary before the judges deliberate and give their verdict. The AG's opinion is published and provides guidance on the law.

As with all EU Directives, the Directives require Member States to adopt national legislation transposing them into national law. Nevertheless, the national courts must interpret the relevant national legislation insofar as it is possible in accordance with the Directives.4 If national rules do not properly implement the Directives, then certain provisions of the Directives may be relied upon directly against the state.5

The EU is a signatory to the Agreement on Government Procurement (GPA) adopted under the auspices of the World Trade Organization. As such, economic operators from GPA states benefit from most of the provisions set out in the Directives (and, therefore, national laws derived from them).6

Additionally, the EU has entered into various free trade agreements, so economic operators from certain other countries also benefit from the Directives.

The European Commission is the 'guardian of the Treaties'. As such, it adopts guidance on procurement law (often by way of non-binding communications or notices). It initiates changes to the Directives. It can also take enforcement action against Member States that are in breach of the Directives or Treaty principles.7

Rules similar to the Directives apply to purchasing by the institutions of the EU such as the Commission, the Council and the CJEU. This chapter does not further consider those special rules.

II YEAR IN REVIEW

The past year has seen more gradual development of procurement case law.

In relation to technical specifications the CJEU has stated that: equal treatment and proportionality remain the key touchstones and that, in particular, the more detailed the technical specifications, the higher the risk to equality and proportionality;8 and that where the technical specification refers to a specific mark, origin or production and permits bidders to propose equivalents, the bidder must be required to prove equivalence in their bid and not afterwards.9

Case law has considered multi-authority framework agreements,10 with the CJEU ruling that an authority that is not a signatory to the framework can award a subsequent contract to the contractor provided that it is clearly identified in the bid documents as a potential beneficiary. The quantity of services that may be required by all potential beneficiary authorities must be taken into account when determining, and advertising, the maximum volume of services under the framework.

The CJEU has considered the rules applicable to exclusion of bidders, confirming that where bidders in a procurement process are related (for example, being part of the same corporate group) there is no general requirement on them to disclose the links between them to the authority.11 Also in connection with exclusion, the CJEU has ruled on the level of evidence that can be required from a bidder where a statutory ground for exclusion applies.12 In the case in question, the ground for exclusion arose from cartel activity, and the evidence required could include a copy of the decision of the investigating competition authority, even though the provision of that document could assist the contracting authority in bringing a civil claim against that bidder arising out of the cartel.

The CJEU has also confirmed that the procedural rules for the open procedure do permit authorities to apply a minimum technical score threshold before bids proceed to full evaluation.13

The CJEU has again considered the 'inherent de facto advantage' of incumbent providers and reiterated that this advantage was only to be 'neutralised' insofar as this was technically easy to carry out, economically acceptable and where it does not infringe the rights of the incumbent.14

Other topics that featured in CJEU rulings included: national security interests15 and the secrecy and special security measures exemption;16 limitation17 and the advertising rules18 applicable under the specific public procurement regime for public passenger transport services.19

III SCOPE OF PROCUREMENT REGULATION

i Regulated authorities

The Directives regulate most public sector entities as well as a significant number of privately owned utility companies. For convenience, we refer to all such entities as 'authorities'.

The 2014 Public Contracts Directive applies to most public law bodies, including 'bodies governed by pubic law' that have a separate legal personality; are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; and are more than 50 per cent funded, managed or controlled by other public sector authorities.20

Private operators may, in limited circumstances, have to procure in accordance with the 2014 Public Contracts Directive; for example, where they award certain works contracts that are more than 50 per cent subsidised by authorities,21 in which case the authorities are obliged to secure compliance.

The 2014 Utilities Contracts Directive applies to contracts for utility activities awarded by entities regulated by the 2014 Public Contracts Directive plus entities operating on the basis of special or exclusive rights.22

Where a utilities market is directly exposed to competition and access to the market is not restricted, Member States may apply to the Commission for a derogation from the 2014 Utilities Contracts Directive for contracts in pursuit of activities in that market.23 Derogations have been granted to a number of Member States in respect of, for example, postal services, electricity, and oil and gas.

The 2014 Concession Contracts Directive applies to the award of works and services concessions by authorities that are caught by the 2014 Utilities Contracts Directive (when pursuing a utility activity) or the 2014 Public Contracts Directive.24 A contract becomes a concession where the consideration includes the right to exploit works or services, and the operating risk (demand, supply or both) in such exploitation is transferred to the concessionaire.25

The Defence and Security Procurement Directive applies to defence and security contracts awarded by authorities governed by the 2014 Utilities Contracts Directive or the 2014 Public Contracts Directive.

ii Regulated contracts

Generally, contracts for construction of works, supply of goods and provision of services, and services and works concessions, awarded by authorities are subject to the Directives if they meet26 the specified minimum financial thresholds:

Goods and services contracts, design contests 2014 Public Contracts Directive €144,000 (central government authorities listed in Annex I) or €221,000 (all other authorities)
Goods and services contracts, design contests 2014 Utilities Contracts Directive €443,000
Goods and services contracts Defence and Security Procurement Directive €443,000
Social and other specific services contracts 2014 Public Contracts Directive €750,000
Social and other specific services contracts 2014 Utilities Contracts Directive €1 million
Works contracts 2014 Public Contracts Directive, 2014 Utilities Contracts Directive and Defence and Security Procurement Directive €5.548 million
Services and works concession contracts 2014 Concession Contracts Directive €5.548 million

Anti-avoidance rules prevent artificial splitting of contracts to bypass the Directives.27

Contracts for certain social and other specific services are regulated to a limited 'light touch' extent28 and, in particular, the obligation to follow one of the specified procedures does not apply, although one of the principal changes from the predecessor directives is that, above the thresholds, advertising and competition is required. These services include health, social, educational, social security and community services. Any service that is not expressly listed as being subject to the 'light touch' regime is fully regulated.

Some types of contract are not regulated by the Directives, such as contracts for:

  1. the acquisition or rental of land;29
  2. employment;30
  3. certain research and development services;31 and
  4. certain financial services.32

There have been a number of CJEU cases deciding whether a transaction was properly classified as an (unregulated) land agreement or a (regulated) works contract.33 Often, the distinction turns on whether the economic operator is obliged to undertake the works34 or whether, while the parties envisage certain works being carried out, the economic operator is at liberty to construct something different or to leave the land undeveloped.

In some exceptional cases, authorities may negotiate contracts with economic operators without prior advertisement,35 for example, in the case of extreme urgency following a failed procurement process or where, for technical reasons, the contract may be awarded only to a particular economic operator. These exceptions are narrowly construed.

Where a public contract is substantially modified, this may amount to a completely new contract, which the authority must competitively tender under the Directives.36

Where the Directives do not apply, some form of advertisement is generally required if there is certain cross-border interest in the resulting contract.37

The 2014 Utilities Contracts Directive applies to the regulated activities listed in Articles 8 to 14 in the fields of gas, heat and electricity, water, transport, post, exploration for or extraction of coal and other solid fuels, and extraction of (but not exploration for) oil and gas. A utility's other activities are unregulated unless the utility is also a contracting authority for the purposes of the 2014 Public Contracts Directive, in which case those other activities are subject to the procedures in that Directive.38

The Defence and Security Procurement Directive applies to contracts for the supply of military equipment, for works and services for military purposes and for the supply of equipment, works and services involving, requiring or containing classified information. Works and services concession contracts in these fields are covered by the 2014 Concession Contracts Directive (which also has provisions determining which rules govern the award of mixed contracts (involving elements covered by each of these Directives)). Where the Defence and Security Procurement Directive applies, neither the 2014 Utilities Contracts Directive nor the 2014 Public Contracts Directive apply. The most sensitive defence contracts may still be awarded outside the scope of the Defence and Security Procurement Directive.

IV SPECIAL CONTRACTUAL FORMS

i Framework agreements and central purchasing

The Directives permit (but do not require) Member States to adopt certain rules aimed at reducing the burden on entities when awarding contracts. These include permitting:

  1. framework agreements (the 2014 Public Contracts Directive, the 2014 Utilities Contracts Directive and the Defence and Security Procurement Directive);39
  2. purchasing through or from central purchasing bodies (the 2014 Public Contracts Directive; the Utilities Contracts Directive; and the Defence and Security Procurement Directive);40
  3. dynamic purchasing systems (DPS) (the 2014 Utilities Contracts Directive and the 2014 Public Contracts Directive);41 and
  4. qualification systems (the 2014 Utilities Contracts Directive).42

These concepts are generally not relevant to the award of works and services concessions, and are not dealt with explicitly in the 2014 Concession Contracts Directive.

Authorities must not use framework agreements or DPS improperly to prevent, restrict or distort competition. Framework agreements may not generally last longer than four years (public sector), seven years (defence) or eight years (utilities).

Framework agreements may be concluded with a single supplier or with multiple suppliers. When calling off from a multi-supplier framework, the authority either runs a 'mini-competition' to award each call-off contract or awards a call-off contract directly based on the terms of the framework agreement.

Central purchasing bodies must be contracting authorities as defined by the 2014 Public Contracts Directive.

ii Joint ventures

In principle, the Directives do not apply to the setting up of a joint venture by one or more authorities (whether public–public or public–private), but they are relevant to any subsequent supply of goods, works or services by the joint venture to the authority or authorities (or to other authorities).

A Commission Interpretative Communication43 on institutionalised public–private partnerships recommends that authorities should simultaneously advertise the selection of the joint venture partner and the award of a contract to the joint venture.

Contracts between authorities are in principle subject to the Directives. There are certain exceptions, although these all prohibit private participation or shareholdings.44

The 2014 Utilities Contracts Directive has separate rules on joint ventures between utilities and on intra-group supplies.45

V THE BIDDING PROCESS

i Notice

Most procurement processes are formally commenced by publication of a contract notice.

All official notices under the Directives, such as prior information notices, contract notices and contract award notices, must be submitted electronically for publication in the Official Journal of the European Union (OJEU), which is accessible free of charge at Tenders Electronic Daily.46

ii Procedures

The Directives envisage various contract award procedures:

  1. open procedure: a one-stage process where bidders must show their good standing and their tender proposals in a single bidding round;47
  2. restricted procedure: a two-stage process where, based on financial standing, qualification and past experience, at least five bidders are shortlisted to tender;48
  3. competitive dialogue procedure: a process generally used for complex procurements where the authority knows only the output that it requires and has not yet identified a solution;49
  4. competitive procedure with negotiation50 or negotiated procedure with advertisement:51 a process generally used for procurements where the authority knows both the output and the likely solution, but wishes to negotiate the terms with bidders;
  5. innovation partnership for the development of innovative products;52 and
  6. exceptionally, negotiated procedure without advertisement.53

For the procurement of social and other specific services under the 'light touch' regime, and where the 2014 Concession Contracts Directive applies, no procedure is specified.

There are minimum timescales for key stages in most procedures, particularly as regards the minimum period between the contract notice and bidders' initial expressions of interest. These time periods may be shortened in some specified cases, and vary depending on the procedure adopted and which Directive applies.54

iii Amending bids

Once bids have been submitted, equal treatment and fairness significantly limit the scope for bid amendments.

Authorities may in certain cases seek clarification or allow bidders to correct obvious errors.55 However, in the case of bids in the open procedure or restricted procedure, or final tenders in the competitive procedure with negotiation or negotiated procedure with advertisement, this does not allow negotiation or the submission of what should be viewed as a new tender.

The competitive dialogue procedure is slightly more flexible: the authority may, before tender evaluation, request that bids be clarified, specified and optimised. However, this must not involve changes to the essential aspects of the tender or the procedure that are likely to distort competition or have a discriminatory effect.56 After selection of the winning bid, negotiations are permitted to confirm aspects of the tender and finalise the contract terms, provided the essential aspects are not materially modified and, again, there is no risk of distortion or discrimination.57

VI ELIGIBILITY

i Qualification to bid

Authorities may reject bidders at the selection stage where they do not meet certain objectively evaluated minimum standards. They may also restrict the number of bidders invited to the next stage of competition under restricted, competitive dialogue, competitive with negotiation and negotiated procedures. These standards may relate to the bidder's:

  1. personal standing (e.g., whether the bidder has been declared insolvent or convicted of money laundering or corruption offences);58
  2. enrolment on a professional or trade register as required in the bidder's state of establishment;59
  3. financial standing;60 and
  4. technical and professional ability.61

A bidder may rely upon the technical and professional ability or financial standing of other entities, which could include other members of a bidding consortium or nominated subcontractors.62

ii Conflicts of interest

The 2014 Procurement Directives contain express provisions on conflicts of interest. Authorities must investigate possible conflicts of interest where a member of the authority's award panel is connected with a bidder, although they have some discretion as to how to deal with such conflicts.63 Although the Defence and Security Procurement Directive does not contain an express provision, the obligation of non-discrimination imposes the same requirements in respect of procurements conducted under it.64

Where an economic operator was involved in design work before the start of the award process and then wishes to bid for the contract, it could have a knowledge advantage from having prepared the designs and it could, even without intending to, have influenced the design of the specification or procurement process in such a way as to favour itself. Authorities must consider these issues case by case and permit the economic operator the opportunity to explain why there is no conflict of interest in a given case;65 a blanket ban on involvement of those with prior knowledge has been held to be disproportionate and in breach of the equal treatment principle.66

iii Foreign suppliers

The Directives do not prohibit non-EU suppliers from bidding for public contracts. The GPA requires providers from GPA states67 to be given the same treatment as is afforded to national providers. Certain types of contracts are outside the GPA, including contracts for health services and defence contracts. Except for central government procurement, which is open to all GPA businesses, other procurements are only open to the extent that the bidder's home state allows EU undertakings access to government procurement.

Special rules apply to utilities for the supply of goods (but not works or services). Where more than half the products (including software in telecommunications network equipment) in a bid are from third countries with which the EU does not have reciprocal agreements and the bid is equivalent in price and quality to an EU bid, then the utility must favour the bid comprising EU products.68

EU rules do not currently prevent non-EU access to public procurement, but restrictions may occur at Member State level. In practice, third-country businesses may be able to overcome any protectionist national rules if they bid through a subsidiary established within the EU.

VII AWARD

i Evaluating tenders

Authorities may assess bids on the basis of price or cost alone, taking a cost-effectiveness approach, or the best price–quality ratio to determine which is the most economically advantageous tender.

Authorities must disclose, before receiving bids, the criteria that they will use for bid evaluation and the weightings of the criteria chosen.69 In general, the criteria and weightings should not be changed during the process.

The authority must, if a tender appears to be abnormally low, request explanations from the bidder, and may then reject the abnormally low tender.70

ii National interest and public policy considerations

Authorities must act in a non-discriminatory manner; therefore, any 'buy local' policy is unlawful.

Indirect means of discrimination are also prohibited. For example, if the specification is written in a particular way to favour national suppliers, this infringes the requirement of non-discrimination. Therefore, an authority should normally use a national technical specification transposing European standards; it can only use other national standards if there is no European standard.71

The procurement may take account of social or environmental considerations, but this must be non-discriminatory and proportionate to the objectives being pursued.72 Any requirements must be relevant to the contract.73

There are limited 'national interest' exceptions in the Directives. For example, the Defence and Security Procurement Directive does not apply to contracts for the purpose of intelligence activities or that would oblige the Member State to supply information contrary to the essential interests of its security.74 These exceptions are narrowly construed.

VIII INFORMATION FLOW

As a result of the principle of transparency, during the procurement process authorities must ensure that they give sufficient information to bidders to enable them properly to understand the authority's requirements and to ensure a level playing field. They must also disclose the award criteria that they will use to mark bids.

Under the Directives, authorities are required to notify bidders of decisions and supply certain information. When they make an award decision, they must then 'stand still' for a minimum of 10 calendar days before signing the contract.75 This period allows unsuccessful bidders time to bring a legal challenge to prevent contract signing if they consider that the award decision is unlawful. Notices of award decisions to bidders must include scores, and a narrative summary of the characteristics and relative advantages of the winning bid.

IX CHALLENGING AWARDS

Challenges to procurement decisions may be brought in the national courts. The cost, complexity and duration of these processes vary considerably from Member State to Member State.

i Procedures

Rules governing challenges under the 2014 Procurement Directives are dealt with in the Public Sector Remedies Directive and the Utilities Remedies Directive, with those governing defence in the Defence and Security Procurement Directive itself. The Commission has reviewed the operation of these directives and has concluded that they are generally working well, so they will be maintained in their present form without further change at this stage.76 In this section, the general provisions common to all are considered and referred to as the 'Remedies Provisions', but references to article numbers are to articles of the Public Sector Remedies Directive.

Member States must ensure that decisions taken by authorities 'may be reviewed effectively',77 and 'as rapidly as possible', in accordance with the Remedies Provisions.78 'Decisions' are construed broadly and can include a decision to admit a bidder.79 Member States may decide who is to carry out such reviews ('review body'). The nature of review bodies varies considerably between Member States, and no bidder should assume that the relevant review body will be the national court. Member States may require that a bidder first seek review with the authority, or that a bidder be required to notify the authority of its intention to seek review.

The review body must be independent of the authority, and the Member State must provide that its decisions can be effectively enforced. If the review body is not the national court, then written reasons for the decision of the review body must be given, and there must be a further right of review by a court that is independent of both the review body and the contracting authority.

The review procedures must be available as a minimum to any person 'having or having had an interest in obtaining a particular contract' (i.e., to bidders themselves) who can show that he or she has been or risks being harmed by an alleged infringement. This leaves scope for interpretation of what a risk of being harmed might mean; for example, must the bidder show that, but for the breach, it would have good prospects of being awarded the contract, or merely that it would have had a more than minimal prospect of being awarded the contract? However, the CJEU has clarified that a bidder who has been definitively excluded from a procedure by an authority (for failure to provide original documentation pertaining to financial standing) can be refused access to a review of the award decision in that procedure.80

It is for the Member State to decide on the relevant limitation period within which any application for review must be made. However, the right to bring a challenge must remain open after the deadline, where a reasonably well informed and diligent bidder would only have understood the tender conditions after the authority had explained its decision.81 Member States may set a limitation period for claiming the remedy of ineffectiveness of at least 30 days from publication of a contract award notice and at least six months from the contract being concluded.

Review procedures adopted by individual Member States have been challenged on occasion. This has led the CJEU to consider areas such as court fees, limitation periods and the availability of remedies.

If the Commission considers that a serious infringement of Community law has been committed during a contract award procedure, it will notify the Member State, giving reasons, prior to a contract being concluded.82 The Member State must then either correct the infringement, give a reasoned submission as to why no correction has been made, or suspend the contract award procedure pending a decision as to whether to correct.

ii Grounds for challenge

The Remedies Provisions say little about the grounds for challenge by bidders, providing simply that infringements of 'Community law in the field of public procurement or national rules transposing that law'83 can be challenged. This covers breaches of both national rules implementing the Directives and Treaty principles, such as equality, non-discrimination and transparency.

The number of challenges and prospects of success vary considerably from state to state.84

As noted above, the Commission may invoke a corrective mechanism when it 'considers that a serious infringement of Community law in the field of public procurement has been committed during a contract award procedure'.85

iii Remedies

There are four main types of remedies that must be available to the review body under the review procedures. The first three are:

  1. interim suspension of the award of the contract pending review by the first instance review body, which must continue at least for the standstill period; the review body's decision as to whether to uphold this interim suspension can take into account the consequences of the continued suspension for all interests likely to be affected, as well as any public interest;
  2. set aside of an unlawful decision; this includes the power to amend the invitation to tender, the contract documents and other documents relating to the contract award procedure, to stop the procurement and to order a new procurement; and
  3. the power to award damages (compensation) to a person harmed by the infringement.86

The fourth and arguably most powerful remedy is that of ineffectiveness. Ineffectiveness must be available in three situations:

  1. if an authority has illegally awarded a contract without prior publication of a contract notice;
  2. if an authority has awarded a contract in breach of the standstill period or suspension of contract award, and a bidder has thereby been deprived of the possibility to complain about some other infringement that has affected the bidder's chance of obtaining the contract; and
  3. where a Member State has permitted award of contracts without a standstill period under a framework or DPS.87

Where the ineffectiveness remedy is not available, Member States may provide that once the contract has been concluded the only remedy available is damages.

Member States can provide that the consequence of ineffectiveness is retroactive cancellation of all contractual obligations, or may limit cancellation to future obligations only. If the latter option is chosen, the Member State must provide for the application of alternative penalties. If the general interest is in upholding the contract, so that the review body decides not to declare a contract ineffective, it must provide for alternative penalties.

Alternative penalties have to be effective, proportionate and dissuasive, and must be either the imposition of a fine on the authority, or shortening of the duration of the contract.

X OUTLOOK

While the wider impact of the UK leaving the EU cannot be known with any certainty, the changes to the Directives are likely to be minor.

No major legislative changes are expected in coming year. In terms of case law, it is notable that the CJEU case law on concessions is very light; in particular there is a lack of rulings on the application of the 2014 Concession Contracts Directive. Greater guidance in this area would be welcomed, with the 2014 Procurement Directives now having been in place for a number of years.


Footnotes

1 Clare Dwyer is a legal director, Michael Rainey is a managing associate and Andrew Carter is an associate at Addleshaw Goddard LLP.

2 Directives 2014/24/EU, 2014/25/EU, 2014/23/EU and 2009/81/EC, respectively.

3 Directives 89/665/EEC (as amended by Directives 92/50/EEC and 2007/66/EC) and 92/13/EEC (as amended by Directives 2006/97/EC and 2007/66/EC), respectively.

4 C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA.

5 C-8/81 Becker v. Finanzamt Münster-Imenstadt.

6 With the exception of the Defence and Security Procurement Directive.

7 Articles 258 and 260 of the Treaty on the Functioning of the European Union and the Remedies Directives (e.g., Public Sector Remedies Directive, Article 3).

8 C-417/16 Roche Lietuva UAB.

9 C-14/17 VARSrl, Azienda Trasporti Milanesi SpA (ATM) v. Iveco Orecchia SpA.

10 C-216/17 Autorità Garante della Concorrenza e del Mercato – Antitrust, Coopservice Soc coop, arl v. Azienda Socio-Sanitaria Territoriale della Vallecamonica – Sebino (ASST) and others.

11 C-531/16 Šiaulių regiono atliekų tvarkymo centras, Ecoservice projektai UAB.

12 C-124/17 Vossloh Laeis GmbH v. Stadtwerke München GmbH.

13 C-546/16 Montte SL v. Musikene.

14 T-211/17 Amplexor Luxembourg Sarl v. European Commission.

15 C-187/16 European Commission v. Republic of Austria.

16 This exemption is found in all of the 2014 Procurement Directives, for example, 2014 Public Contracts Directive, Article 15(3).

17 C-54/18 Cooperativa Animazione Valdocco.

18 C-518/17 Stefan Rudigier.

19 Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road. This displaces the 2014 Procurement Directives for the specific transport award processes to which it applies.

20 Article 2(1)(4).

21 Article 13.

22 Article 4.

23 Article 34.

24 Article 1(2).

25 Article 5(1).

26 See Commission Delegated Regulation (EU) 2017/2365 of 18 December 2017 amending Directive 2014/24/EU (2014 Public Contracts Directive), Commission Delegated Regulation (EU) 2017/2364 of 18 December 2017 amending Directive 2014/25/EU (2014 Utilities Contracts Directive), Commission Delegated Regulation (EU) 2017/2366 of 18 December 2017 amending Directive 2014/23/EU (2014 Concession Contracts Directive) and Commission Regulation (EU) 2017/2367 of 18 December 2017 amending Directive 2009/81/EC (Defence and Security Procurement Directive).

27 For example, 2014 Public Contracts Directive, Article 5.

28 2014 Public Contracts Directive, Article 74 and Annex XIV, 2014 Utilities Contracts Directive, Article 91 and Annex XVII. Some (but not all) of these services are also subject to lighter regulation under the Defence and Security Procurement Directive, Article 16 and Annex II.

29 For example, 2014 Public Contracts Directive, Article 10(a).

30 For example, 2014 Public Contracts Directive, Article 10(g).

31 For example, 2014 Public Contracts Directive, Article 14.

32 For example, 2014 Public Contracts Directive, Article 10(e).

33 For example, C-220/05 Jean Auroux and others v. Commune de Roanne.

34 C-451/08 Helmut Müller GmbH v. Bundesanstalt für Immobilienaufgaben.

35 For example, 2014 Public Contracts Directive, Article 32.

36 C-454/06 pressetext Nachrichtenagentur GmbH v. Republic of Austria and others. The 2014 Procurement Directives codify and amplify the case law (e.g., the 2014 Public Contracts Directive, Article 72).

37 See C-324/98 Telaustria Verlags GmbH and another v. Telekom Austria AG, Commission interpretative communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives, OJEU 2006/C 179/02 (1 August 2006), and T-258/06 Germany v. Commission.

38 C-393/06 Ing Aigner, Wasser-Wärme-Umwelt GmbH v. Fernwärme Wien GmbH.

39 Respectively, Articles 33, 51 and 29.

40 Respectively, Articles 37, 55 and 10.

41 Respectively, Articles 52 and 34.

42 Article 77.

43 Commission interpretative communication on the application of Community law on Public Procurement and Concessions to Institutionalised Public-Private Partnerships (IPPP), C (2007) 6661 (5 February 2008).

44 C-107/98 Teckal Srl v. Comune di Viano and another; C-324/07 Coditel Brabant SA v. Commune d'Uccle and another; Hamburg Waste (C-480/06 Commission v. Germany). This case law is codified and amplified under the 2014 Procurement Directives, e.g., 2014 Public Contracts Directive, Article 12.

45 Articles 29 and 30.

46 http://ted.europa.eu.

47 For example, 2014 Public Contracts Directive, Article 27.

48 For example, 2014 Public Contracts Directive, Article 28.

49 For example, 2014 Public Contracts Directive, Article 30.

50 2014 Public Contracts Directive, Article 29.

51 For example, 2014 Utilities Contracts Directive, Article 47.

52 For example, 2014 Public Contracts Directive, Article 31.

53 For example, 2014 Public Contracts Directive, Article 32.

54 For example, 2014 Public Contracts Directive, Articles 27 to 31 and 47.

55 2014 Public Contracts Directive, Article 56(3) and 2014 Utilities Contracts Directive, Article 76(4). While there is no explicit provision in the 2014 Concession Contracts Directive or in the Defence and Security Procurement Directive the same rules would be expected to apply under the Treaty principles to amendments during procedures governed by those Directives.

56 For example, 2014 Public Contracts Directive, Article 30(6).

57 For example, 2014 Public Contracts Directive, Article 30(7).

58 For example, 2014 Public Contracts Directive, Article 57.

59 For example, 2014 Public Contracts Directive, Article 58(2).

60 For example, 2014 Public Contracts Directive, Article 58(3).

61 For example, 2014 Public Contracts Directive, Article 58(4).

62 For example, 2014 Public Contracts Directive, Article 63.

63 For example, the 2014 Public Contracts Directive, Article 24.

64 See T-160/03 AFCon Management Consultants and others v. Commission, which was decided under internal Commission rules but the principles in the case are likely to apply to the Defence and Security Procurement Directive.

65 For example, the 2014 Public Contracts Directive, Articles 41 and 57(4)(f).

66 See joined cases C-21/03 and C-34/03 Fabricom SA v. Belgium, Paragraphs 25 to 36.

67 In addition to the 28 EU Member States, the other GPA states are Armenia, Australia, Canada, Hong Kong, Iceland, Israel, Japan, Republic of Korea, Liechtenstein, Moldova, Montenegro, the Netherlands (with respect to Aruba), New Zealand, Norway, Singapore, Switzerland, Chinese Taipei, Ukraine and the United States. A revised and expanded GPA, modernising certain aspects of its rules, entered into force on 6 April 2014.

68 2014 Utilities Contracts Directive, Article 85.

69 For example, 2014 Public Contracts Directive, Article 67; C-532/06 Emm G Lianakis AE and others v. Dimos Alexandroupolis and others, Paragraphs 36 to 38.

70 For example, 2014 Public Contracts Directive, Article 69.

71 For example, 2014 Public Contracts Directive, Article 42(3), (4) and (5).

72 This is codified in, for example, the 2014 Public Contracts Directive, Articles 18(2) and 56(1), which permit authorities to exclude bidders that do not comply with their obligations in the fields of environmental, social and labour law.

73 See C-448/01 EVN AG and Wienstrom GmbH v. Austria, where the bidder was required to show it supplied volumes of 'green' electricity that went far beyond the authority's actual requirement. The CJEU held this was unlawful.

74 Article 13(a) and (b). See also 2014 Public Contracts Directive, Article 15.

75 For example, Public Sector Remedies Directive, Article 2a.

76 European Commission: Report to the European Parliament and the Council on the effectiveness of Directives 89/665/EEC and 92/13/EEC as modified by Directive 2007/66/EC concerning review procedures in the area of public procurement (24 January 2017).

77 See C-440/13 Croce Amica One Italia Srl v. Azienda Regionale Emergenza Urgenza (AREU). The purpose of the review is to ensure that the EU public procurement rules are complied with, so that a simple examination of whether the decision is arbitrary will not suffice.

78 Article 1(1).

79 C-391/15 Marina del Mediterraneo, SL v. Consejeria de Obras Publicas y Vivienda de la Junta de Andalucia (5 April 2017).

80 C-355/15 Bietergemeinschaft Technische Gebäudebetreuung GesmbH und Caverion Österreich GmbH v. Universität für Bodenkultur Wien, VAMED Management und Service GmbH & Co. KG in Wien.

81 C-583/13 eVigilo Ltd v. Priesgaisrines apsaugos ir gelbejimo departamentas prie Vidaus reikalu ministerijos.

82 Article 3.

83 Article 1(1).

84 See national chapters for details of numbers and prospects for challenge.

85 Article 3(1).

86 Article 2(1).

87 Article 2d.