FORT success in public procurement case
FORT attorney at law Mantas Meizeraitis successfully advised locally and internationally experienced wastewater treatment company in more than 7 mln. Euro litigation against municipality controlled contracting authority on wastewater sludge treatment facility construction tender clauses.
Contracting authority issued public procurement documents and additional explanations, where participants were obliged to prove their previous successful experience of designing and construction/reconstruction of a complex object and the named experience should have been acquired by performing single previous contract at participant’s “own resources”.
The economic operator has submitted pre-trial claim and afterwards the claim to the court to declare restricting requirements unlawful and annul them because the above requirements have restricted supplier’s right to participate in this tender by unifying his partial experience together with experience of subcontractors or joint venture partners, those requirements were not necessary to achieve their purpose and were oriented to large scale construction companies.
Contracting authority was trying to change her previous explanations of contested tender requirements as applicable only to main construction tasks, mitigated their position on the meaning of the contested clauses during court procedures, but court of first instance and court of appeal of Lithuania ruled that the contested tender clauses contradicted principles of transparency and proportionality and were artificially narrowing down competition.
Similar evaluation of such tender clauses was confirmed in one of the newest (2017-04-05) ECJ decisions in “Lithuanian” case No. C-298/15 where Court has acknowledged that it is forbidden to set such tender clauses under which in case economic operator subcontracts part of the tasks, main part of construction tasks should be performed by economic operator itself. Therefore, we hope that the direction of the above precedents will help to change limitations of the extent of subcontracting of main construction tasks.