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On 12 March 2015, the European Court of Justice (ECJ) announced its judgement on a request for preliminary ruling made by the Supreme Court of Lithuania concerning a dispute related with public procurement legal relations between an Israeli company ‘eVigilo’ and the Fire and Rescue Department under the Ministry of the Interior 

The dispute between the parties is related with an open invitation to tender entitled ‘for the purchase of a system for warning and informing the public, using the infrastructure of the networks of providers of services relating to public mobile telephone’ published by the contracting authority. The plaintiff – the Israeli company ‘eVigilo’ – brought an action before Lithuanian courts challenging the conditions of purchase and the criteria for evaluating the successful tender. On 9 October 2013, the Court of Cassation referred to the ECJ for clarification of EU directives that regulate public procurement procedures and the rights of a tenderer.

The ECJ held that a conflict of interests entails the risk that the contracting authority may choose to be guided by considerations unrelated to the contract in question and that on account of that fact alone preference may be given to a tenderer. Such a conflict of interests is thus liable to constitute an infringement of the principles of public procurement. The fact that the contracting authority appointed experts acting on its mandate in order to evaluate the tenders submitted does not relieve that authority of its responsibility to comply with the requirements of EU law. An expert’s bias to be established solely on the basis of an objective situation in order to prevent any risk that the public contracting authority could be guided by considerations unrelated to the contract in question, thus a tenderer does not need to bear the burden of proving that the experts appointed by the contracting authority were in fact biased. The contracting authority is, at all events, required to determine whether any conflicts of interests exist and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them.

In addition, the ECJ stated that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way, and it is for the referring court to assess whether the tenderer concerned was in fact unable to understand the award criteria at issue or whether he should have understood them by applying the standard of a reasonably informed tenderer exercising ordinary care.  Where it follows from that assessment that the tender conditions were in fact incomprehensible to the tenderer and that the latter was prevented from introducing an application within the period provided for by national law, that tenderer is entitled to bring an action until the period prescribed for bringing proceedings against the decision to award the contract has expired.

Finally, the ECJ stated that a contracting authority is to be allowed to use, as an evaluation criterion for tenders submitted by the tenderers for a public procurement contract, in the degree to which those tenders are consistent with the requirements included in the tender documentation.

For the request for the preliminary ruling made by Supreme Court of Lithuanian see: http://www.lat.lt/lt/teismu-praktika/kreipimaisi-i-es-teismus.html. Please acknowledge the source of reference when citing or otherwise making use of this information