Delta Antrepriză de Construcţii şi Montaj 93 SA v Compania Naţională de Administrare a Infrastructurii Rutiere SA.
Date: 2019-10-03
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The option available to any contracting authority to exclude a tenderer from a procurement procedure is particularly intended to enable it to assess the integrity and reliability of each of the tenderers. In particular, the optional ground for exclusion mentioned in Article 57(4)(g) of Directive 2014/24, read in conjunction with recital 101 of that directive, is based on an essential element of the relationship between the successful tenderer and the contracting authority, namely the reliability of the successful tenderer, on which the contracting authority’s trust is founded (see, to that effect, judgment of 19 June 2019, Meca, C‑41/18, EU:C:2019:507, paragraphs 29 and 30).
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Furthermore, it is for CNAIR to assess whether or not, in failing to inform it of the early termination of contract No 1, Consortium No 2 adopted conduct caught by Article 57(4)(h) of Directive 2014/24. As the Advocate General observed, in essence, in point 53 of his Opinion, that provision encompasses both active conduct, such as falsification, and an omission, provided that the communication of false information is, in the same way as the concealment of true information, likely to have a bearing on the decision adopted by the contracting authority.
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That interpretation is moreover supported by the second subparagraph of Article 57(5) of Directive 2014/24, which provides that, ‘at any time during the procedure, contracting authorities may exclude or may be required by Member States to exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraph 4’.
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In the present case, since the early termination of contract No 1 has been formally determined, it was for Consortium No 2, in accordance with the requirements of transparency and good faith, to inform the contracting authority of its situation. Accordingly, it ought to have provided at the outset all the information that could prove that the characterisation as subcontracting was mistaken, so that it had not failed to fulfil its obligations in the context of contract No 1, or that the failure to obtain the contracting authority’s authorisation in the context of the prior public contract constituted only a minor irregularity. Such information could in particular have been mentioned in the standard form for the European Single Procurement Document, annexed to Implementing Regulation 2016/7. Part III of that form, which concerns ‘Exclusion grounds’, includes Point C on ‘Grounds relating to insolvency, conflicts of interests or professional misconduct’. In the context of Point C, tenderers must, in particular, answer whether they are guilty of grave professional misconduct and, if so, they are requested to provide details.
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Lastly, if the contracting authority concludes that the conditions laid down in Article 57(4)(g) or (h) of Directive 2014/24 are fulfilled, it must, in order to meet the requirements of Article 57(6) of that directive, read in conjunction with recital 102 of that same directive, allow the economic operator in question the opportunity to provide evidence to the effect that the corrective measures taken by it are sufficient to prevent the irregularity giving rise to the early termination of the prior public contract being repeated and are, therefore, capable of demonstrating the operator’s reliability despite the existence of a relevant optional ground for exclusion.