IN DIEM Administrative Law Attorneys. Challenge to Tender Specifications. Tendering. Case Studies.

Case Studies: Challenge to Tender Specifications. Tendering.

IN DIEM Lawyers obtains a favorable resolution in a procedure challenging Tender Specifications. The tender specifications for the award of the DOCUMENTATION DEPOSIT AND CUSTODY SERVICE of the Andalusian Agency for Environment and Water were appealed. The fundamental reason was the infringement of competition, by establishing a geographical limitation on potential suppliers.

The technical specifications of the tender document required that the contractor’s facilities be located within a 25 km radius of the Central Services of the Environment Agency. This limited the number of suppliers participating in the tender, which implied a restriction on the options for awarding such services.

To this end, the IN DIEM Administrative Law Attorneys Department developed the following arguments in its appeals:

• Free competition, affecting the public interest, the appealing bidder (our client), and private interest;
• Constitutional principles of legality and legal certainty.
• Principles of publicity, transparency, and equality.

 

Administrative Resolution. Facts.

Therefore, in Section III of the Facts, it is indicated that the appellant establishes the following as infringements:

The appellant points out the infringement of the Legal System with respect to Point 3.2.1 a) of the Technical Specifications Document by virtue of articles 1 and 117.2 of the TRLCSP, through which the contracting authority is limited in determining technical specifications by the need to respect the principles of equal treatment and openness of public contracts to competition.

The judgment of the Court of Justice of the European Communities, of September 17, 2002, in case C-513/99, is cited in relation to the principle of equal treatment, stating that it responds to the very essence of public procurement directives, which aim, in particular, to promote the development of effective competition in the sectors covered by their respective scopes and which set out the contract award criteria aimed at ensuring such competition.

In short, the appellant argues that, from the perspective of the legal contracting procedure, the principle of free competition, legality, and legal certainty enshrined in Article 9 of the Spanish Constitution, and the principles of publicity, transparency, and equality of the tendering procedure provided for in Article 1 of the LCSP, are violated.

 

Administrative Resolution. Legal Grounds.

Finally, the resolution recognized the following in Section Five of the Legal Grounds:

In application of the principles governing public procurement, this Agency adopts the principle established in Article 18.1 of Directive 2014/24/EU of February 26, on public procurement, “Principles of Procurement” which states: “Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent and proportionate manner.”

[...] there has been an unrectifiable infringement of the rules governing the award procedure for the file, committing the error in the Technical Specifications Document of limiting the maximum distance of the contractor's facilities to a radius not exceeding 25 km from the Agency's Central Services but without intending to reduce competition, so it would be appropriate to uphold the Optional Appeal for Reconsideration filed against the agreement approving the contracting file which approves the aforementioned Document, and in particular, point 3.2.1. a) of the Technical Specifications Document of the tender for the award of the DOCUMENTATION DEPOSIT AND CUSTODY SERVICE contract of the Andalusian Agency for Environment and Water, regarding the elimination of the geographical limitation of the facilities.

 

Consequences of Upholding the Appeal.

The consequence of upholding the appeal was inevitably the impossibility of continuing with the award procedure. The procedure is withdrawn in accordance with Article 115.2 et seq. of the TRLCSP, at the time of the applicable resolution. The aforementioned article states the following:

[The waiver of the contract or the withdrawal from the procedure may only be agreed upon by the contracting authority before the award. In both cases, candidates or bidders shall be compensated for the expenses incurred, in the manner provided in the announcement or in the tender document, or in accordance with the general principles governing the liability of the Administration..

Which means, for practical purposes, the restart of the tendering procedure. The possibility for our client to participate in the tender and the option of being awarded the administrative contract.

 

Administrative and Administrative Litigation Attorneys | IN DIEM: Experience⁺.

IN DIEM Lawyers has a very combative Administrative and Administrative Litigation Law Department, currently led by Matilde Flores Esquivia, a professional specializing in Administrative Law, who has served as a Magistrate-Judge in Administrative Litigation Courts, as well as other Legal Directors of the IN DIEM Team, with experience as Magistrate-Judges and State Attorneys.

We invite you to meet our colleagues who are part of the Department, such as Ángel José Del Pino Ibáñez and Casimiro Galán Garrido, also with experience as a Magistrate-Judge and State Attorney, respectively. A whole team specializing in Administrative Law is also ready to assist you.

 

IN DIEM Lawyers: Málaga, Seville, Madrid, Las Palmas de Gran Canaria, Huelva…

In the practice of Administrative Law, we challenge resolutions of the Public Administration, especially when these resolutions are not in accordance with the law. In this regard, our goal is to provide our clients with the utmost satisfaction. Currently, IN DIEM Lawyers has offices in Málaga, Seville, Madrid, Las Palmas de Gran Canaria, and Huelva. We are at your disposal for whatever you need. You can reach us by phone at IN DIEM Lawyers (+34) 901 900 071. For emergencies, you can reach us at the IN DIEM 24-Hour Emergency Lawyers Phone: (+34) 610 667 452.

For more information on the Administrative and Administrative Litigation Department of IN DIEM Lawyers, you can link HERE

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