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CJEU – The tenderer cannot be required to perform itself the main works as defined by the contracting entity

Subcontractors :

The Court of Justice ruled in this judgment of 5 April 2017 that a national law which provides that, where subcontractors are relied on for the performance of a public works contract, the tenderer is required to perform itself the main works, as defined by the contracting entity, constitutes a restriction on the freedom of establishment and the freedom to provide services.

However, such a restriction may be justified in so far as it pursues a legitimate objective in the public interest, and to the extent that it complies with the principle of proportionality in that it is suitable for securing the attainment of that objective and does not go beyond what is necessary in order to attain it.

Changes in the tender specifications :

In the same judgment, the Court of Justice ruled that the principles of equal treatment and non-discrimination and the obligation of transparency  must be interpreted as meaning that they do not preclude the contracting entity from making changes to a clause in the tender specifications, after publication of the tender notice, relating to the conditions and scheme for combining professional capacities.

However the following conditions shall be met :

  • first,the changes made are not so substantial that they have attracted potential tenderers which, in the absence of such changes, would not be in a position to submit a tender,
  • second, they are adequately publicised and,
  • third, they are made before the tenderers submit their bids,
  • and that the time limit for submitting those tenders is extended when the changes concerned are substantial, the length of that extension depending on the extent of those changes, and that the length of time is sufficient to allow the economic operators concerned to adapt their tender as a consequence, which is for the referring court to ascertain.

Contribution of each tenderers in a common tender:

Final point ruled by the Court of Justice : a tender specification cannot require, where a common tender is submitted by several tenderers, that the contribution of each of them in order to satisfy the requirements applicable with regard to professional capacities correspond, proportionally, to the share of the works that it will actually perform if that bid is successful.

CJEU – 5 April 2017 – C-298/15 “Borta” UAB